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In re Jacquelyn W.

Court of Appeals of Connecticut

October 27, 2016

IN RE JACQUELYN W.[*]

          Argued September 8, 2016 [**]

         Appeal from Superior Court, judicial district of Hartford, Juvenile Matters, Frazzini, J. [neglect judgment]; Burgdorff, J. [motion for order of commitment]; Hon. Robert G. Gilligan, judge trial referee [motion to transfer permanent guardianship; articulation].

          Karen Oliver Damboise, for the appellant (respondent mother).

          Carolyn A. Signorelli, 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).

          Beach, Prescott and Bishop, Js.

          OPINION

          BEACH, J.

         The respondent mother, Wendy F., appeals from the judgment of the trial court rendered in favor of the petitioner, the Commissioner of Children and Families, granting a motion to transfer permanent legal guardianship of the respondent's minor daughter, Jacquelyn W., to Jacquelyn's aunt, Shirley R. The respondent claims that the court improperly granted the petitioner's motion for permanent transfer of guardianship because the court failed (1) to canvass her prior to the hearing in accordance with In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015); and (2) to advise her that the court could draw an adverse inference from her failure to testify. We disagree and affirm the judgment of the trial court.

         The record reveals the following relevant facts and procedural history. Jacquelyn was born in 2005. In 2012, the court adjudicated Jacquelyn neglected and ordered six months protective supervision by the Department of Children and Families (department). Six months later, the court granted the petitioner's motion to commit Jacquelyn to the department's care and custody. From September, 2013, until June, 2015, Jacquelyn resided with her paternal aunt, Shirley R. Jacquelyn developed a strong relationship with Shirley. She referred to Shirley as ‘‘Auntie, '' and had her own room in Shirley's apartment. While living with Shirley, Jacquelyn continued to have regular visits and contact with her mother. Jacquelyn expressed a desire to maintain her relationship with her mother, but to continue to reside with Shirley. On June 1, 2015, the petitioner moved to transfer and to vest permanent legal guardianship of Jacquelyn in Shirley. The respondent mother objected to the motion.

         The court, Hon. Robert G. Gilligan, judge trial referee, conducted a hearing on the motion on January 25, 2016. The respondent was represented by counsel at this hearing, but did not testify. On February 9, 2016, the court granted the petitioner's motion for a permanent transfer of legal guardianship. The court determined that, pursuant to General Statutes § 46b-129 (j) (6), the department had established by clear and convincing evidence that (1) a ground for termination of parental rights existed-that is, that the respondent had been provided with specific steps to take to facilitate Jacquelyn's return, and had failed to achieve the degree of personal rehabilitation as would encourage the belief that, within a reasonable time, the respondent could assume a responsible position in Jacquelyn's life; (2) adoption was not appropriate in this case; (3) Shirley, the proposed legal guardian, was Jacquelyn's relative; (4) Jacquelyn had resided with Shirley for at least one year; (5) Shirley was a suitable and worthy guardian; and (6) the transfer of permanent legal guardianship of Jacquelyn to her aunt was in Jacquelyn's best interest.

         This appeal followed.

         I

         Prior to trial, the court did not provide the respondent with the In re Yasiel R. canvass, nor was it requested to do so. The respondent argues that the court's failure to provide a pretrial canvass constituted plain error, and that this court should invoke its supervisory authority to expand the canvass requirement to apply to hearings regarding the permanent transfer of guardianship. We disagree.

         In In re Yasiel R., supra, 317 Conn. 773, our Supreme Court held that parents must be canvassed prior to any trial for termination of parental rights. Id., 793-94. As part of that canvass, the court must explain the trial process, the parent's rights during trial, and the potential consequences of an adverse determination in the proceeding. Id., 794.

         The respondent's claim regarding the canvass was not preserved at trial. In re Yasiel R. had been published shortly before trial in this case; the parties, then, had the ability to invoke In re Yasiel R. and to request a canvass, but did not do so. In these circumstances, reversal would constitute an ambuscade of the trial court; see Remillard v.Remillard, 297 Conn. 345, 352, 999 A.2d 713 (2010); and we would not reach the ...


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