In re Miyuki M.

202 Conn.App. 851

246 A.3d 1113

IN RE MIYUKI M.^*

AC 44186

Appellate Court of Connecticut.

Argued January 4, 2021

Officially released February 23, 2021^**

Benjamin M. Wattenmaker, Hartford, assigned counsel for the appellant (respondent mother).

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

Rebecca Mayo Goodrich, for the minor child.

Bright, C. J., and Moll and DiPentima, Js.

BRIGHT, C. J.

The respondent mother, Shayna C., appeals from the judgment of the trial court terminating her parental rights as to her child, Miyuki M.¹ On appeal, the respondent claims that (1) the court's failure to canvass her regarding her written stipulation of facts violates her right to due process under the fourteenth amendment to the United States constitution, constitutes plain error, and requires the exercise of our supervisory authority, and (2) the court erred in denying her motion to transfer guardianship of her child to the child's maternal grandmother. We affirm the judgment of the trial court.

Initially, we set forth the following procedural history. Following the birth of the child, the Department of Children and Families (department) became involved with the respondent and the child's father, which resulted in the removal of the child from the family home. Approximately one year later, the child was reunified with the respondent. Less than two years later, on March 10, 2017, the petitioner, the Commissioner of Children and Families, invoked a ninety-six hour hold on the child due to concerns about the mental health and substance abuse issues of the respondent and the child's father. On March 13, 2017, the petitioner filed a neglect petition, and the court granted the petitioner's ex parte motion for an order of temporary custody. On July 19, 2017, the court adjudicated the child neglected following the respondent's plea of nolo contendere to allegations in the neglect petition. On July 26, 2017, the court committed the child to the care and custody of the petitioner. On December 29, 2017, the petitioner filed a motion to review permanency plan, and, on February 23, 2018, the court held a hearing, after which it approved the permanency plan of termination of parental rights and adoption, and it added a concurrent plan of transfer of guardianship to either the paternal grandparents or the maternal grandmother. The court also made a finding of no further reasonable efforts.

On April 11, 2018, the petitioner filed a termination of parental rights petition, and, on August 21, 2018, the respondent filed a motion to transfer guardianship to the child's maternal grandmother. On December 17, 2018, the petitioner filed a permanency plan of termination of parental rights and adoption. On January 4, 2019, the respondent objected to the permanency plan, but she agreed that reunification was not an appropriate plan for the child and that the department should not be obligated to make any reasonable efforts to achieve reunification. On February 25, 2019, the court conducted a consolidated trial on the termination of parental rights petition and the respondent's motion to transfer guardianship to the child's maternal grandmother, at the start of which the court properly canvassed the respondent pursuant to In re Yasiel R. , 317 Conn. 773, 794, 120 A.3d 1188 (2015) ( Yasiel R. ). On February 26, 2019, the petitioner presented the court with a stipulation of facts, signed by the respondent, and the respondent's attorney agreed that there was no need for the court to conduct a canvass of the respondent before accepting the stipulation of facts. The court then accepted the stipulation as a "filing." On April 4, 2019, the respondent's attorney filed a motion to withdraw from the case. On April 15, 2019, the court granted that motion, and, on April 22, 2019, the court declared a mistrial.

Following the mistrial, the case proceeded to a new consolidated trial, which was held over the course of eight days between July 29 and November 12, 2019. The following facts, as found by the trial court, and additional procedural history inform our review of the respondent's claims on appeal. At the start of the new trial, the court, pursuant to Yasiel R., again canvassed the respondent, who was represented by new counsel, provided her with the advisement required by Practice Book § 32a-1, and inquired as to whether she understood her rights as described in the canvass and the advisement, to which she responded in the affirmative.² Court was recessed shortly thereafter at the request of one of the attorneys. The next day, the respondent and the petitioner indicated that they had "an agreement on exhibits" and that "there [was] no objection" to the exhibits being entered into evidence. The court stated that exhibits "A through Q are going to be recognized as full exhibits, as each of them are presented during trial." Exhibit P was the stipulation that the respondent had signed in February, 2019, which had been accepted as a "filing" in the previous trial.

On October 15, 2019, during the respondent's testimony before the trial court, she agreed with many of the stipulated facts set forth in exhibit P, but she disagreed with others. She also explained why she signed the stipulation even though she thought some of the facts contained therein were incorrect. The court also heard testimony from department social workers, aides, the child's maternal grandmother, the maternal grandmother's therapist, and a friend of the maternal grandmother.

After considering all of the evidence presented at trial, the court issued a memorandum of decision on March 9, 2020, in which it found that the respondent had "made a number of attempts to overcome her substance abuse and to acquire the necessary parenting skills, but [that she] has not been successful with either." The court further found that "there [was] insufficient evidence concerning [the] maternal grandmother to permit the court to find that she is ‘suitable and worthy’ ...." Additionally, the court found that the child was bonded with her foster family, having lived with them for much of her life, and that a transfer of guardianship to the maternal grandmother would not be in the child's best interests. Accordingly, the court granted the petitioner's termination of parental rights petition, and it denied the respondent's motion to transfer guardianship to the child's maternal grandmother. This appeal followed. Additional facts will be set forth as necessary to address the respondent's claims.

I

The respondent first claims that the court's failure to canvass her before accepting into evidence exhibit P, which was the written stipulation of facts that had been filed during the previous trial, violated her right to due process of law.³ The respondent acknowledges that this issue was not preserved because she did not object to exhibit P during her trial, and, therefore, she requests review pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989). The respondent further argues that the court's acceptance of exhibit P without canvassing her separately constitutes plain error and requires the exercise of our supervisory authority. We conclude that this claim is not of constitutional magnitude and that, even if we were to assume that it meets that threshold, the court, nonetheless, acted properly in admitting into evidence exhibit P without, sua sponte, conducting another canvass of the respondent. Furthermore, we decline to employ the plain error doctrine⁴ or our supervisory authority⁵ because neither is warranted under the facts of this case. See State v. Lavigne , 307 Conn. 592, 598 n.5, 57 A.3d 332 (2012) (declining to review defendant's claims under "inherent supervisory authority and the plain error doctrine ... because our supervisory powers and the plain error doctrine are reserved for extraordinary circumstances that are not implicated by the present case").

"Under Golding , a [respondent] can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [respondent's] claim will fail. ... State v. Golding , supra, 213 Conn. at 239–40, 567 A.2d 823 ; see [ Yasiel R. , supra, 317 Conn. at 781, 120 A.3d 1188 ] (modifying third prong of Golding by eliminating word clearly)." (Internal quotation marks omitted.) In re Zoey H. , 183 Conn. App. 327, 335, 192 A.3d 522, cert. denied, 330 Conn. 906, 192 A.3d 425 (2018).

The respondent argues that her claim is reviewable under Golding because the record is adequate and the claim involves her fundamental right to raise her child. The petitioner concedes that the respondent's claim satisfies both the first and second Golding prongs but, argues, nonetheless, that the trial court's acceptance of "factual stipulations ... does not implicate an individual's right to due process ...." We conclude that the record is adequate for review, but we are not persuaded that the respondent's claim is of constitutional magnitude. See In re Devon W ., 124 Conn. App. 631, 647, 6 A.3d 100 (2010) ("[p]utting a constitutional tag on a nonconstitutional claim will [not] change its essential nature" (internal quotation marks omitted)).

In the first trial, the respondent agreed to a stipulation of facts, which then was filed in the case. After the court declared a mistrial and a new trial was underway, the petitioner, without...