In re Zen T.

IN RE ZEN T.^*

AC 36525

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued June 3, 2014

Officially released July 9, 2014^**

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(Appeal from Superior Court, judicial district of

Middlesex, Child Protection Session at Middletown,

Elgo, J.)

Heather S., self-represented, the appellant (respondent mother).

Amor C. Rosario, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Lisabeth B. Mindera, for the minor child.

Opinion

PER CURIAM. The self-represented respondent mother, Heather S., appeals from the judgment of the trial court denying her motion to open the judgment terminating her parental rights. On appeal, she sets forth a variety of issues, none of which has merit. We conclude, therefore, that the court did not abuse its discretion in denying the motion to open. Accordingly, we affirm the judgment of the trial court.

This court recently affirmed the judgment of the trial court terminating the respondent's parental rights as to Zen T., the respondent's minor child.¹ See In re Zen T., 149 Conn. App. 376, 88 A.3d 1286, cert. denied, 312 Conn. 911, A.3d (2014). In that opinion, we set forth the following facts and procedural history, which are relevant to the present appeal. "The petitioner, the Commissioner of Children and Families . . . filed a petition with the court, requesting that the parental rights of the respondent be terminated. The statutory ground alleged in the petition against the respondent mother is that the child has been denied, by reason of an act or acts of parental commission or omission, including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance, or control necessary for the child's physical, educational, moral, or emotional well-being, [pursuant to] General Statutes § 17a-112 (j) (3) (C). . . .

"After the trial concluded, the court held that the petitioner proved, by clear and convincing evidence, that: (1) the Department of Children and Families (department) made reasonable efforts to reunify the family, as required by § 17a-112 (j) (1); (2) termination was in the best interest of the child, pursuant to § 17a-112 (j) (2); and (3) with respect to § 17a-112 (j) (3) (C), the child's various fractures and hematomas were serious physical injuries that were nonaccidental or were otherwise inadequately explained. The court further found that all seven grounds for termination delineated in § 17a-112 (k) existed. It then ordered the termination of the respondent's parental rights."² (Footnote omitted; internal quotation marks omitted.) Id., 378-79.

The sole issue raised in the respondent's first appeal was that she was denied effective assistance of counsel and was prejudiced thereby. Id., 377. We rejected her claim, concluding that she had "not demonstrated that her trial counsel's representation resulted in prejudice to her." Id., 382.

After she had filed her first appeal, the respondent filed a motion in the trial court to open or set aside the judgment on December 30, 2013, approximately four months after that court's judgment.³ She alleged ineffective assistance of counsel, unethical practices by thedepartment, insufficient evidence, the unconstitutionality of § 17a-112, and a violation of her right to be heard as the bases for her motion.⁴

The court held a hearing on January 16, 2014, at which time the respondent filed an amended motion to open and set aside the judgment. The court issued an oral ruling denying the respondent's amended motion because she failed to allege or establish that granting the motion was in the best interest of Zen T. as required by General Statutes § 45a-719.⁵ This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the legal principles that guide our analysis. "Our review of a court's denial of a motion to open . . . is well settled. We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. . . . In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did." (Internal quotation marks omitted.) In re Ilyssa G., 105 Conn. App. 41, 45, 936 A.2d 674 (2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008). "As to a termination of parental rights judgment, before granting a motion to open, the court must also consider the best interest of the child. General Statutes § 45a-719." (Internal quotation marks omitted.) Id., 46; see also In re Samantha S., 300 Conn. 586, 588 n.3, 15 A.3d 1062 (2011); In re Travis R., 80 Conn. App. 777, 786, 838 A.2d 1000, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004).⁶

The respondent first claims that the court improperly found that it was not in Zen T.'s best interest to remain with her. We review this claim under the clearly erroneous standard of review. In re Travis R., supra, 80 Conn. App. 786. The court initially noted that the respondent had not raised the issue of the best interest of Zen T. in her motion as required by § 45a-719. At the conclusion of the hearing, the court concluded that she had failed to establish that opening the judgment was in Zen T.'s best interest. Most of the respondent's arguments attack the merits of the underlying judgment terminating her parental rights; such contentions, however, are not properly raised by a motion to open filed outside of the appeal period for the judgment of termination. Additionally, we are not persuaded by her reasoning that keeping a child from a parent "who had a meritorious defense and is a good mother and truly innocent of wrong doing and who had no reason to suspect the surreptitious abuse of her son by his father" fails to account for the child's best interest. This statement essentially ignoresthe termination proceedings that have taken place and would require a reevaluation of those judicial determinations.

The respondent also argues that she received ineffective assistance of counsel during the termination proceedings and, therefore, the court should have granted the motion to open. As noted previously, in the respondent's appeal from the judgment terminating her parental rights, the sole issue raised was that she had received ineffective assistance of counsel. We conclude that the respondent is barred from raising claims of ineffective assistance of counsel as a result of res judicata. See State v. Jones, 98 Conn. App. 695, 700-701, 911 A.2d 353 (2006), cert. denied, 281 Conn. 916, 917 A.2d 1000 (2007); see also State v. Collazo, 115 Conn. App. 752, 757, 974 A.2d 729 (2009) (doctrine of collateral estoppel barred defendant from relitigating claim decided in prior appeal), cert. denied, 294 Conn. 929, 986 A.2d 1057 (2010). We conclude, therefore, that the respondent's claim that the court improperly found that it was not in Zen T.'s best interest to remain with her must fail.

The respondent next claims that she was not allowed to present evidence to support her motion to open. Our review of the record reveals that the respondent did not request an evidentiary hearing, and she has not pointed us to any authority requiring the court to conduct such a hearing. See, e.g., American Honda Finance Corp. v. Johnson, 80 Conn. App. 164, 168, 834 A.2d 59 (2003). We conclude, therefore, that the court did not abuse its discretion in not holding an evidentiary hearing with respect to the respondent's motion to open.

The respondent next claims that her fourteenth amendment right to due process was violated because she was not appointed counsel for the motion to open. A parent has a statutory, not constitutional, right to appointed counsel in termination of parental rights proceedings. See In re Isaiah J., 140 Conn. App. 626, 640, 59 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 333, cert. denied sub nom Megan J. v. Katz, U.S. , 134 S. Ct. 317, 187 L. Ed. 2d 224 (2013); see also In re Elysa D., 116 Conn. App. 254, 265, 974 A.2d 834 (no federal or state constitutional right to appointed counsel in termination of parental rights proceedings), cert. denied, 293 Conn. 936, 981 A.2d 1079 (2009). We are unaware of any...