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In re Daniel N.

Supreme Court of Connecticut

December 6, 2016

IN RE DANIEL N.[*]

          Argued September 23, 2016

          Gregory T. D'Auria, solicitor general, with whom were Renee Bollier, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Benjamin Zivyon and Michael J. Besso, assistant attorneys general, for the appellant (petitioner).

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

          David J. Reich filed a brief for the respondent mother.

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. [*]

          OPINION

          EVELEIGH, J.

         In this certified appeal, [1] the petitioner, the Commissioner of Children and Families, [2] appeals from the judgment of the Appellate Court reversing the judgment of the trial court terminating the parental rights of the respondent father, Jose N., to the minor child, Daniel N.[3] Specifically, the petitioner claims[4] that the Appellate Court improperly concluded that the failure to canvass the respondent prior to the commencement of the termination of parental rights trial in accordance with the rule promulgated pursuant to the exercise of our supervisory authority in In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015), applies retroactively to the present case and requires reversal. See In re Daniel N., 163 Conn.App. 322, 333, 135 A.3d 1260 (2016). Because we conclude that application of the canvass rule announced in In re Yasiel R. to the present case would exceed the scope of the exercise of our supervisory authority in that case, we reverse the judgment of the Appellate Court.

         The following facts and procedural history are relevant to our disposition of this appeal: ‘‘Daniel was born in 2006. He has two half siblings, born in 2012, who have 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.'' Id., 324-25.

         ‘‘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 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.'' Id., 325. The trial court did not canvass the respondent prior to trial or at any time prior to the rendering of judgment.

         The trial court filed the memorandum of decision terminating the respondent's parental rights approximately two weeks after publication of our decision in In re Yasiel R. The respondent then appealed to the Appellate Court claiming that In re Yasiel R. required reversal of the trial court's judgment because he did not receive a canvass before trial. Id., 333. The Appellate Court agreed, reversed the judgment of the trial court, and remanded the case for a new trial. Id., 337. This certified appeal followed.

         The petitioner claims that the Appellate Court improperly concluded that this court's holding in In re Yasiel R. mandated reversal in the present case. Specifically, the petitioner claims that our holding in In re Yasiel R. was limited and that nothing this court said in that case requires a reversal in cases in which the trial concluded prior to the announcement of the canvass rule. The petitioner also claims that, even if the canvass rule applies in the present case, automatic reversal would be inappropriate and reversal should be considered on a case-by-case basis. On the other hand, the respondent claims that the Appellate Court properly reversed the trial court's judgment because the canvass rule applies retroactively to trials concluded after In re Yasiel R. and the failure to provide the canvass in the present case required automatic reversal. In support of this conclusion, the respondent claims that the general rule is that judicial decisions apply retroactively and our decision to reverse the judgment in In re Yasiel R. is a retroactive application of the canvass rule. Additionally, the respondent claims that the failure to provide the canvass requires reversal because the basis for reversal is the failure to provide the canvass, not ‘‘the way in which the case is ultimately tried.'' Because we conclude that the exercise of our supervisory authority in In re Yasiel R. is not applicable to the present case, we reverse the judgment of the Appellate Court.

         We begin with a review of the principles regarding our supervisory authority. ‘‘It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice. . . . Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . Under our supervisory authority, we have adopted rules intended to guide the lower courts in the administration of justice . . . .'' (Internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 764-65, 91 A.3d 862 (2014). Our ‘‘supervisory authority is not a form of free-floating justice, untethered to legal principle. . . . Rather, the rule invoking our use of supervisory power is one that, as a matter of policy, is relevant to the perceived fairness of the judicial system as a whole, most typically in that it lends itself to the adoption of a procedural rule that will guide lower courts in the administration of justice in all aspects of the [adjudicatory] process. . . . Indeed, the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of [this court's] supervisory powers.'' (Citations omitted; internal quotation marks omitted.) In re Yasiel R., supra, 317 Conn. 790.

         Generally, cases in which we have invoked our supervisory authority for rule making have fallen into two categories.[5] See State v. Carrion, 313 Conn. 823, 850, 100 A.3d 361 (2014); State v. Elson, supra, 311 Conn. 768 n.30. ‘‘In the first category are cases wherein we have utilized our supervisory power to articulate a procedural rule as a matter of policy, either as [a] holding or dictum, but without reversing [the underlying judgment] or portions thereof.'' State v. Elson, supra, 768 n.30. ‘‘We invoke our supervisory authority in such a case . . . not because the use of that authority is necessary to ensure that justice is achieved in the particular case. Rather, we have determined that the [appellant] received a fair trial and therefore is not entitled to the extraordinary remedy of a new trial. Nevertheless, it may be appropriate, in such circumstances, to direct our trial courts to conduct themselves in a particular manner so as to promote fairness, both perceived and actual, in future cases.'' (Emphasis in original.) State v. Carrion, supra, 851-52. ‘‘In the second category are cases wherein we have utilized our supervisory powers to articulate a rule or otherwise take measures necessary to remedy a perceived injustice with respect to a preserved or unpreserved claim on appeal.'' State v. Elson, supra, 768 n.30. In other words, in the first category of cases we employ only the rule-making power of our supervisory authority; in the second category we employ our rule-making power and our power to reverse a judgment. State v. Carrion, supra, 851-52.

         In light of our observation that ‘‘[o]ur cases have not always been clear as to the reason for [the] distinction'' between the two categories of cases; State v.Diaz, 302 Conn. 93, 107 n.11, 25 A.3d 594 (2011); we recently clarified the distinction between the two categories. See State v.Carrion, supra, 313 Conn. 849-53. In Carrion, we observed that the salient distinction between these two categories of cases is that in one category we afford a remedy and in the other we do not. Id., 851-52. In the second category of cases, where we exercise both powers under our supervisory authority, the party ‘‘must establish that the invocation of our supervisory authority is truly necessary because [o]ur supervisory powers are not a last bastion of hope for every untenable appeal.'' (Internal quotation marks omitted.) Id., 851. In almost all cases, ‘‘[c]onstitutional, statutory and procedural limitations are generally adequate to protect the rights of the [appellant] and the integrity of the judicial system.'' (Internal quotation marks omitted.) State v.Coward, 292 Conn. 296, 315, 972 A.2d 691 (2009). ‘‘[O]nly in the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just administration of the courts'' will we exercise our supervisory authority to reverse a judgment. (Internal quotation marks omitted.) State v.Carrion, supra, 851. In such a circumstance, ‘‘the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of [the] utmost seriousness, not ...


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