In re Kiara Liz V., AC 44264

203 Conn.App. 613

248 A.3d 813

IN RE KIARA LIZ V.^*

AC 44264

Appellate Court of Connecticut.

Argued February 17, 2021

Officially released March 30, 2021^**

David B. Rozwaski, assigned counsel, for the appellant (respondent father).

Carolyn A. Signorelli, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Evan O'Roark, assistant attorney general, for the appellee (petitioner).

Alvord, Elgo and Alexander, Js.

ALEXANDER, J.

The respondent father, Luis V., appeals from the judgment of the trial court rendered in favor of the petitioner, the Commissioner of Children and Families (commissioner), terminating his parental rights as to his minor child, Kiara Liz V. (Kiara), pursuant to General Statutes § 17a-112. On appeal, the respondent claims that the court (1) improperly denied his request for a continuance and (2) erred in determining that the termination of his parental rights was in the best interests of Kiara. We disagree, and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the respondent's appeal. Kiara was born in October, 2016, and the commissioner took custody of her shortly thereafter. On December 5, 2017, the court found Kiara to be neglected. On June 22, 2018, the commissioner moved to terminate the parental rights of the respondent and Kiara's mother.¹

The court, Crawford, J. , conducted a four day trial in December, 2019.² The court noted that the respondent's parental rights had been terminated with respect to three other children on the basis of his failure to rehabilitate. See General Statutes § 17a-112 (j) (3) (E).³ It also observed that there had been two prior determinations that the Department of Children and Families (department) had made reasonable efforts at reunification.

The court then addressed the statutory ground of failure to rehabilitate alleged in the petition to terminate the respondent's parental rights. See General Statutes § 17a-112 (j) (3) (E).⁴ It noted that the department "has been involved with [the respondent] because of his extensive criminal history, including gang related activities, a history of violence including accusations of being involved in two murder charges which resulted in convictions for assault in the first degree, the physical and sexual abuse of his four older children, the sale and distribution of illegal drugs, and violation of probation. One of the [respondent's] daughters has a permanent disfigurement on her hand, the result of [the respondent] submerging her hand in boiling water after she denied him sexual intercourse."

The court also detailed the respondent's mental health issues. Prior to an evaluation that occurred in October, 2016, "[the respondent] had been treated ... for schizoaffective disorder, polysubstance abuse, and personality disorder not otherwise specified. ... The underlying issues included inhaling glue as a child and abuse of [V]alium as an adult, and purchasing [X]anax on the street. He has had at least twelve suicide attempts, and admitted to being suicidal, self-injurious, fire setting, and having homicidal thoughts or behaviors and hearing voices since age seventeen."

In 2015, the respondent's clinician expressed concern for his untreated mental health issues and his unaddressed sexual and physical abuse of his older daughters. The respondent indicated that he was receiving mental health treatment, but the clinician was unable to verify his compliance with such treatment or medication. He also refused referrals for further treatment. In January, 2016, he did resume treatment following referrals from the department.

On November 30, 2016, approximately one month after Kiara's birth, Ines Schroeder, a clinical and forensic psychologist, performed a psychological examination of the respondent. Schroeder opined that the respondent demonstrated cognitive deficits and difficulty in processing information. She further noted that his blunted mood and affect was consistent with his prior diagnosis of schizophrenia or schizoaffective disorder. The respondent reported regular hallucinations that occurred twice per day, as well as homicidal and suicidal ideation. Schroeder indicated that, in her opinion, the respondent failed to recognize safety concerns and was unable to maintain his mental health, which made it unlikely that he was capable of caring for Kiara. Schroeder stated that the respondent would need to demonstrate engagement in long-term treatment and demonstrate mental health stability for at least one year in order to demonstrate the ability to parent. The department continued to arrange mental health treatment for the respondent, but his inconsistent attendance and sporadic compliance with his medication regimen resulted in little progress by July 29, 2019. The respondent's failure to be compliant with the offered mental health services prevented the department from providing him with a referral for parenting education. Ultimately, the court concluded: "Many of [the respondent's] service providers worked to assist him with addressing the issues that impede his ability to parent [Kiara]. [Two of the providers] also identified the efforts [the respondent] would have to make to be a parent to [Kiara], and [the respondent] has failed to make those efforts."

The court then proceeded to the dispositional phase and the best interests of the child analysis.⁵ In considering the relevant statutory factors, the court first determined that the respondent had "difficulty accepting and understanding his mental illness. He has not complied with treatment and failed to be consistent in order to make progress in his ability to be a parent." The court found that the respondent never prepared a home for Kiara and failed to change his lifestyle so that he could gain custody of her. The court observed that the respondent had not been prevented from having a meaningful relationship with Kiara and that his inability to "get [himself] to a place to parent [Kiara]" was the result of his actions or failures to act. The court found that Kiara, who never had been in the care and custody of the respondent, did not recognize the respondent as her father. The court then concluded, on the basis of clear and convincing evidence, that termination of the respondent's parental rights was in the best interests of Kiara. This appeal followed.⁶

I

The respondent first claims that the court improperly denied his request for a continuance. He claims that the court's denial of a request for a continuance on the last day of trial prevented him from testifying and constituted a denial of his due process rights. The petitioner counters, inter alia, that the respondent failed to preserve this claim and cannot satisfy the first prong of State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). We agree with the petitioner.

The following additional facts are necessary for our discussion. The respondent attended the first three days of the trial.⁷ At the outset of the proceedings on December 30, 2019, the respondent's counsel informed the court of the respondent's absence. Specifically, the respondent's counsel stated: "Your Honor, if I may just, briefly—address—my client's [absence] today, that he had—had indicated that he was not able to secure transportation to court this morning. Given ... that the length of time this case had been pending, I—I indicated to him I didn't think the court would grant a continuance. I—I did tell him I would, at least, raise that issue for the court to consider, so I'm doing that right now." The court confirmed on the record with the respondent's counsel that the respondent had been present for the previous court date. The following colloquy then occurred between the court and the parties:

"The Court: And, so, he was aware of this date and did he make any contact with you?

"[The Respondent's Counsel]: He did not. He did not. I believe he may have made some phone calls to me this morning, but on my way to court I don't—

"The Court: What do you mean you believe he may have—

"[The Respondent's Counsel]: He indicated on the phone that he tried— "The Court: —because did he have any contact—

"[The Respondent's Counsel]: —to contact me this morning—

"The Court: —to you?

"[The Respondent's Counsel]: —probably, right before court. I had contact [with] him as well before court. That's when I learned of his transportation issues. But he was aware of this court date. We had spoken about it and I had provided him the date and, over the holiday we had—well, he was aware, so—

"The Court: Okay. All right. Then it appears he did not make the necessary arrangements to be present and may I inquire—because I believe the department will provide transportation when necessary—did either the [assistant attorney general] or social worker receive any contact from [the respondent] concerning the need for transportation to court?

"[Assistant Attorney General]: No, Your Honor.

"[Social Worker]: No, Your Honor.

"The Court: Ok. All right. Sit down and we'll proceed."

Shortly thereafter, the parties rested. At no point during the final day's proceedings did the respondent's counsel make any further comments or arguments regarding the respondent's absence nor did the respondent's counsel file any posttrial motions requesting to open the hearing in order to present further evidence or testimony regarding the respondent's absence.

On appeal, the respondent argues, for the first time, that "[t]he failure to grant trial counsel's continuance request or make alternative arrangements for the [respondent] to be present for the last day of trial, deprived the [respondent] of his fundamental due process rights in trying to have a fair trial to protect his parental rights. Accordingly, the trial court erred in denying [the respondent's] trial counsel's request for a continuance so that the [r...