In re Azareon Y.

60 A.3d 742, 139 Conn. App. 457, 2012 WL 5870493, 2012 Conn. App. LEXIS 559
CourtConnecticut Appellate Court
DecidedNovember 20, 2012
DocketAC 34691
StatusPublished
Cited by1 cases

This text of 60 A.3d 742 (In re Azareon Y.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Azareon Y., 60 A.3d 742, 139 Conn. App. 457, 2012 WL 5870493, 2012 Conn. App. LEXIS 559 (Colo. Ct. App. 2012).

Opinion

Opinion

LAVINE, J.

The respondent mother, Shayna Y., appeals from the judgments of the trial court, Cofield, J., terminating her parental rights with respect to her [459]*459minor son and daughter, pursuant to General Statutes § 17a-112 (j) (3) (B) (i) for failure to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, she could assume a responsible position in the lives of her children.1 On appeal, the respondent claims that (1) § 17a-112 is not tailored sufficiently narrow to secure the best interests of her children without violating her substantive rights to due process under the state and federal constitutions and (2) the court abused its discretion and violated her rights to due process under the federal constitution by failing to hold, sua sponte, a hearing to determine her competency to stand trial.2 We affirm the judgments of the trial court.

In its oral memorandum of decision, the court made the following findings of fact by clear and convincing evidence. When the respondent, who was bom in 1989, was a young child, she was removed from her own mother’s care and placed in the custody of her maternal aunt. The respondent did not do well in school and, at the age of ten and one-half years old, was referred to Riverview Hospital. She has been diagnosed with attention deficit hyperactivity disorder, anxiety and [460]*460depression. Medication will not help the respondent’s memory and judgment problems. The court found that the respondent is transient and unemployed and has mental health and domestic violence issues. She exhibits poor parenting skills, a failure to perceive safety issues and poor judgment. The respondent has received a variety of services from Hartford Behavioral Health, Village for Children and Family and Klingberg Family Services, but either has not completed the programs offered or was not able to benefit from them.

The respondent gave birth to her son in 2008 and to her daughter in 2009. A social worker from the department of children and families removed the children from the respondent’s home in November, 2010, pursuant to a ninety-six hour hold. The petitioner, the commissioner of children and families, filed a motion for an order of temporary custody on November 12, 2010. On May 10, 2011, the court, Dyer, J., adjudicated the children neglected and ordered specific steps for the respondent. On September 20, 2011, the petitioner filed petitions to terminate the respondent’s parental rights with respect to her son and her daughter. Since October 13, 2011, the children have resided with the respondent’s maternal aunt, a licensed foster parent, who has presented herself as an adoptive resource.3 Judge Cofield granted the petitions to terminate the respondent’s parental rights with respect to her minor son and daughter on May 18, 2012, after finding that termination was in the best interests of the children. The court found that the children were in need of a secure and permanent environment. This appeal followed.

On appeal, the respondent concedes that “her cognitive limitations preclude reunification with her children as a viable means of providing a stable environment for them going forward.” Nonetheless, she claims that [461]*461(1) § 17a-112 is unconstitutional as applied to her because it violates her substantive due process rights under the federal and state constitutions4 and (2) that the court denied her due process under the federal constitution by failing to order, sua sponte, an evaluation to determine whether she was competent to understand the proceedings and assist her counsel. The respondent acknowledges that she failed to preserve either of her claims at trial and, therefore, on appeal, seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

An appellant “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 clearly exists and clearly deprived the [appellant] of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [appellant’s] claim will fail. The appellate tribunal is free, therefore, to respond to the [appellant’s] claim by focusing on whichever condition is most relevant in the particular circumstances.

“The [appellant] bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record [462]*462are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the [appellant’s] claim.” (Emphasis in original.) Id.

I

The respondent’s first claim is that § 17a-112, as applied to her, denied her substantive due process of law because, during the dispositional phase of trial,5 the court did not find by clear and convincing evidence that there was no permanency plan that would have secured the best interests of her son and daughter that was less restrictive than termination of her parental rights with respect to her children. The record is inadequate for our review of the respondent’s claim.

Section 17a-112 (k)6 prescribes the factual findings a court must make by clear and convincing evidence [463]*463in deciding whether the termination of parental rights is in the best interest of the child. In a termination of parental rights proceeding, the “statutory criteria must be strictly complied with before termination can be accomplished.” (Internal quotation marks omitted.) In re Dorrell R., 64 Conn. App. 455, 463, 780 A.2d 944 (2001). The record contains the petitioner’s permanency plan but is devoid of alternatives, and the respondent has not indicated that she requested that the court consider any alternatives. Moreover, the court’s memorandum of decision does not indicate whether the court considered a permanency plan other than the one advocated by the petitioner, and the respondent did not ask the court to articulate whether it had considered other options. See Practice Book § 66-5.

“Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the respondent’s claims] would be entirely speculative.” (Internal quotation marks omitted.) State v. Duteau, 68 Conn. App. 248, 254, 791 A.2d 591, cert. denied, 260 Conn. 939, 835 A.2d 58 (2002). The respondent’s claim fails for lack of an adequate record.

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Cite This Page — Counsel Stack

Bluebook (online)
60 A.3d 742, 139 Conn. App. 457, 2012 WL 5870493, 2012 Conn. App. LEXIS 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-azareon-y-connappct-2012.