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IN RE MATTHEW P. ET AL.*

(AC 36562)

Lavine, Prescott and Lavery, Js.

Argued September 22—officially released October 28, 2014**

(Appeal from Superior Court, judicial district of

Middlesex, Child Protection Session, Hon. Thayer

Baldwin, Jr., judge trial referee [mistrial]; Hon. Barbara

M. Quinn, judge trial referee [judgments].)

David J. Reich, for the appellant (respondent

mother).

Jessica Gauvin, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general,

for the appellee (petitioner).
Opinion

LAVERY, J. The respondent mother,1 Charlene C.,

appeals from the judgments of the trial court rendered

in favor of the petitioner, the Commissioner of Children

and Families, terminating her parental rights as to her

two children, M and P. On appeal, the respondent claims

that the court’s denial of her motion for a continuance

constituted a violation of due process. We affirm the

judgments of the court.

The following facts and procedural history, as found

by the court, are relevant to this appeal. The respondent

has struggled with substance abuse and mental illness

since her early adolescence.2

In June 2009, M was born

to the respondent and Matthew P. In January, 2010,

the Department of Children and Families (department)

invoked a ninety-six hour administrative hold on behalf

of M, removing him from the respondent’s care for

the first time. At that time, the respondent had been

exhibiting out-of-control behaviors and was transported

to the emergency room to receive medical treatment

for being under the influence of narcotics. An ex parte

order of temporary custody was subsequently granted.

This order was sustained on January 29, 2010. On May

11, 2010, M was adjudicated neglected and committed

to the care and custody of the petitioner.

Due to the respondent’s progress with regard to her

treatment and sobriety, the court granted the petitioner’s motion to revoke the commitment of M on September 1, 2010. The court also entered an order of protective

supervision for a period of six months. In November,

2010, P was born to the respondent and Paul A. Subsequently, the court granted the petitioner’s motion to

extend protective supervision of M until April, 2011.

Two months later, in June, 2011, both children were

removed from the respondent’s care by an order of

temporary custody because the respondent and Paul

A. appeared highly intoxicated at a train station with

both children in their care. The respondent subsequently was charged with two counts of risk of injury

to a minor. On September 6, 2011, the children were

adjudicated neglected and committed to the care and

custody of the petitioner. On September 20, 2011, the

court granted the petitioner’s motion to revoke commitment of the children. The court ordered protective

supervision of the children for six months.

In January, 2012, the children were again adjudicated

neglected and were committed to the care and custody

of the petitioner because the respondent had been

involved in a car accident in which P was unrestrained.

Upon examination at the hospital, P exhibited dilated

pupils and a decreased heart rate, consistent with secondary exposure to phencyclidine (PCP). The respondent was arrested for assault, risk of injury, and breach

of peace. On July 9, 2012, the court granted the respon-
dent’s motion to revoke commitment and ordered protective supervision for six months.

Six days later, on July 17, 2012, the department

removed the children from the respondent’s care due

to her intoxication and incoherence. Subsequently, the

court sustained the order of temporary custody. This

removal marked M’s fourth and P’s third such commitment to the petitioner’s custody.

In early August, 2012, the department placed the children in the custody of the respondent’s sister, JAC, as

a foster care provider. At that time, JAC was a participant in the department’s young adolescent program.

Within a month, JAC was overwhelmed by caring for

M and P in addition to her own child. In September,

2012, the department removed M and P from JAC’s

home.3

On November 28, 2012, the petitioner filed petitions

to terminate the respondent’s parental rights. The petitions alleged that the department had made reasonable

efforts to reunify the respondent with the children and

that she was unable or unwilling to benefit from the

reunification efforts. The petitions further alleged that

the respondent had failed to achieve such degree of

personal rehabilitation as would encourage the belief

that within a reasonable time, considering the age and

needs of the children, she could assume a responsible

position in their lives. See General Statutes § 17a-112

(j) (3) (B).

A trial took place over three days in April, 2013. The

court, Hon. Thayer Baldwin, Jr., judge trial referee,

consolidated for trial the petitioner’s termination of

parental rights petitions and a motion filed by the

respondent to transfer guardianship of the children to

JAC. After the trial had concluded, Judge Baldwin

retired before rendering a decision, and the court,

Brown, J., declared a mistrial. The matter was transferred to the Child Protection Session in Middletown

for a retrial of the petitions.

The second trial was held on December 5, 2013, and

January 13, 2014. On the first day of trial, the respondent’s counsel, Howard J. Wicker, orally moved the

court for an open-ended continuance. Wicker indicated

that his client was hospitalized due to a recurrence of

an ‘‘eye infection or a facial infection’’ and, therefore,

could not be present. The court, Hon. Barbara M.

Quinn, judge trial referee, noted Wicker’s objection to

proceeding without the respondent but indicated that,

considering the procedural history of this case, the trial

would commence as scheduled. In light of the interests

at stake, the court ordered that the respondent would

be permitted to review the transcripts from the first

day of trial with her attorney, and to call or recall any

witnesses for direct or cross-examination when she was

present in the courtroom. On the first day of trial, the
court admitted the petitioner’s twenty-seven exhibits in

full and heard testimony from Logan Green, a physician

whom the court had ordered to evaluate the respondent,

and four of the department’s social workers: Elizabeth

Hazelwood, Kelli Wright, Jerene Davis, and Kelly

Stratton.

On the second day of trial, the respondent was present. The respondent had had approximately one month

to review the transcripts from the first day of trial with

her attorney. The petitioner called Chrichton Stewart,

a department social work supervisor, to testify. The

respondent then recalled Davis and Green for further

cross-examination. Additionally, the respondent testified and presented two of her own witnesses: Deborah

F., her former foster mother, and JAC.

Judge Quinn further found that from the most recent

date that the respondent’s children had been removed,

in June, 2012, through the period of time when the

termination of parental rights petitions were retried,

she has ‘‘remain[ed] drug-addicted and has failed to

address her serious mental health issues.’’ As of January, 2014, the respondent had not completed a substance abuse treatment program or addressed her

mental health. The court heard testimony that, as a

result, the respondent has lost her housing and remains

transient with no legal source of income. Pursuant to

the order of temporary custody granted in July, 2012,

the children presently remain in the care of the petitioner. Both children currently reside in the same preadoptive foster home.

On January 23, 2014, Judge Quinn issued a memorandum of decision terminating the respondent’s parental

rights.4 The court found that the respondent has been

provided with ‘‘[a]n extraordinary number of services,’’

including outpatient services and, until recently, supportive housing. Having found that the petitioner had

satisfied the necessary statutory factors to terminate

the respondent’s parentalrights by clear and convincing

evidence, the court concluded that the termination of

the respondent’s parental rights was in the children’s

best interest. See General Statutes § 17a-112; In re Valerie D., 223 Conn. 492, 511, 613 A.2d 748 (1992). Thus,

the court terminated the respondent’s parental rights

pursuant to § 17a-112 (j) (3) (B) for failing to achieve

personal rehabilitation.5 This appeal followed.

On appeal, the respondent claims that her due process rights were violated because Judge Quinn improperly denied her request for a continuance during the

termination proceedings, which prevented her from

being present on the first day of trial.6 The respondent

acknowledges that the court implemented procedures

to enable her to examine witnesses on the second day

of trial; however, the respondent argues that these procedural protections were constitutionally inadequate.

We do not agree.
We begin our analysis by setting forth the applicable

standard of review. ‘‘Ordinarily, we resolve claims concerning the denial of a motion for a continuance under

the abuse of discretion standard. . . . The substance

of the [respondent’s] claim, however, concerns due process. We resolve due process claims pursuant to

Mathews v. Eldridge, 424 U.S. 319, 334–35, 96 S. Ct.

893, 47 L. Ed. 2d 18 (1976).’’ (Citations omitted.) In re

Jaime S., 120 Conn. App. 712, 738, 994 A.2d 233 (2010),

appeal dismissed, 300 Conn. 294, 12 A.3d 566 (2011)

(certification improvidently granted). ‘‘[The] test [in

Mathews] requires a consideration of the private interest that will be affected by the official action, the risk

of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards, and the

Government’s interest, including the function involved

and the fiscal and administrative burdens that the additional or substitute procedural requirement would

entail.’’ (Internal quotation marks omitted.) Giordano

v. Giordano, 39 Conn. App. 183, 194, 664 A.2d 1136

(1995). ‘‘Stated differently, we must determine if the

private interest of the [respondent] in the companionship, love and control of the child is at risk of being

erroneously terminated because of the lack of an adequate procedural safeguard that could be provided for

[her] without disregarding the state’s interest in the

well-being of the child and the fiscal and administrative

burden on the state.’’ In re Jaime S., supra, 738.

‘‘Due process does not mandate full evidentiary hearings on all matters, and not all situations calling for

procedural safeguards call for the same kind of procedure. . . . So long as the procedure afforded adequately protects the individual interests at stake, there

is no reason to impose substantially greater burdens

. . . under the guise of due process.’’ (Citation omitted;

internal quotation marks omitted.) GMAC Mortgage

Corp. v. Glenn, 103 Conn. App. 264, 275, 931 A.2d 290

(2007). ‘‘The bottom-line question is whether the denial

rendered the [proceeding] fundamentally unfair in view

of the Mathews factors.’’ In re Shaquanna M., 61 Conn.

App. 592, 606, 767 A.2d 155 (2001). Our balancing of

the three Mathews factors leads us to the conclusion

that the denial of the respondent’s motion for a continuance did not render the termination proceeding fundamentally unfair.

The first Mathews factor concerns ‘‘the private interest that will be affected by the official action.’’ Mathews

v. Eldridge, supra, 424 U.S. 335. It is axiomatic that the

respondent has a constitutionally protected interest in

her parental rights. See, e.g., Stanley v. Illinois, 405

U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972);

In re Alison M., 127 Conn. App. 197, 220, 15 A.3d 194

(2011). The petitioner does not dispute that the respondent’s interest in retaining her parental rights to her two
sons is constitutionally protected. Because a petition to

terminate parental rights threatens this fundamental

interest, the first Mathews factor weighs in favor of the

respondent. See In re Tremaine C., 117 Conn. App. 521,

530, 980 A.2d 317, cert. denied, 294 Conn. 920, 984 A.2d

69 (2009).

The second Mathews factor concerns the risk of error

regarding the loss of the respondent’s parental rights

occasioned by her absence from the first day of trial.

In the present case, we must consider the risk of an

erroneous deprivation of the respondent’s interest,

given the existing procedures, and the value, if any,

of the additional safeguard of granting the requested

continuance. See Mathews v. Eldridge, supra, 424

U.S. 335.

On appeal, the respondent claims that she was

deprived of the opportunity to take part in and observe

the first day ofthe termination proceedings. The respondent alleges that ‘‘[her] presence [at the first day of

trial] was vital in order for her to properly participate

in the trial.’’ Specifically, the respondent claims that

she did not receive a fair trial, and her due process

rights were violated, because ‘‘there is at least a possibility that [she] could have provided some insight to help

her attorney based on her observations at trial’’ had

she been present on December 5, 2013. The respondent

further claims that ‘‘the additional safeguard that the

court should have allowed was determining how long

[she] was expected to remain in the hospital and granting a continuance if that stay was short term.’’

The respondent also argues that in assessing the risk

of erroneous deprivation in the present case, this court

should consider the fact that she recalled two of the

petitioner’s witnesses on the second day of trial. The

respondent claims that the present case is distinguishable from In re Juvenile Appeal (Docket No. 10155),

187 Conn. 431, 446 A.2d 808 (1982), because, unlike the

incarcerated individual in that case, she availed herself

of the opportunity to recall two witnesses for further

cross-examination, therefore demonstrating her dissatisfaction with the procedural protections invoked by

the court in her absence. Specifically, the respondent

claims that the present case is distinguishable from

cases involving the termination of an incarcerated individual’s parental rights because she was not ‘‘expected

to be unavailable for an extended period of time, but

was merely temporarily hospitalized.’’ We are not persuaded.

We conclude that the second Mathews factor weighs

in favor of the petitionerforthe following reasons. First,

the respondent was on notice of the issues to be raised

and the testimony to be presented at the second trial

because she had already witnessed the entire trial that

had commenced in April, 2013, before the mistrial was

declared. Second, the respondent has failed to establish
exactly what assistance she might have provided her

attorney had she been present at the first day of trial.

We note that the respondent’s counsel was present on

the first day of trial and represented herinterests during

her absence. This court has stated that ‘‘[i]t is in the

interest of justice to ensure that any parent caught in

the throes of a termination proceeding be present, or

at least represented by counsel, from the beginning of

the hearing.’’ (Emphasis added.) In re Jonathan P., 23

Conn. App. 207, 212, 579 A.2d 587 (1990); see also In

re Lukas K., supra, 120 Conn. App. 475.7 Accordingly,

although the respondent was absent from the first day

of the proceedings, her counsel was present and adequately protected her from the risk of an erroneous

deprivation of her parental rights to her children. Third,

our Supreme Court has found in similar instances that

the specific procedures implemented by the court in

the present matter were sufficient to protect the due

process rights of a parent who was absent from a termination proceeding due to incarceration. See, e.g., In re

Juvenile Appeal (Docket No. 10155), supra, 187 Conn.

436–37, 441 (holding that court’s denial of motion for

continuance did not deny incarcerated father’s right

to due process where he was provided with complete

transcript of first day of termination proceeding). The

petitioner correctly notes that‘‘[t]he trial court provided

[the respondent] with transcripts of the testimony from

the first day of trial, over a month to review them with

her trial counsel and the option to recall any of the

[p]etitioner’s witnesses.’’ Finally, the respondent had

the opportunity to present her own witnesses or recall

any of the petitioner’s five witnesses for cross-examination on the second day of trial when she was present.

The respondent testified on her own behalf and chose

to recall two of the petitioner’s witnesses, Davis and

Green, for further cross-examination. The respondent

could have recalled the rest of the petitioner’s witnesses

who testified on the first day of trial for either direct

or cross-examination, but she chose not to do so.

Accordingly, we conclude, on the basis of this record,

that the risk of an erroneous deprivation under these

circumstances was very low.

The third factor of the Mathews balancing test concerns the government’s interest in the termination proceeding, which is twofold. ‘‘First, the state has a fiscal

and administrative interest in lessening the cost

involved in termination proceedings. . . . Second, as

parens patriae, the state is also interested in the accurate and speedy resolution of termination litigation in

order to promote the welfare of the affected child.’’

(Citation omitted.) In re Alexander V., 223 Conn. 557,

565, 613 A.2d 780 (1992).

The respondent argues that the third factor weighs

in her favor because the burden on the government in

granting the continuance would have been minimal.

The respondent further argues that her temporary
unavailability while hospitalized is distinguishable from

the indefinite unavailability of a parent who is incarcerated, and, therefore, ‘‘there would have been little burden on the state had the continuance been granted.’’

We disagree.

First, ‘‘the state has a fiscal and administrative interest in lessening the cost involved in termination proceedings.’’ In re Alexander V., supra, 223 Conn. 565. In

the present case, the state does not suggest that the

fiscal and administrative costs of granting a continuance would have been prohibitive. In denying the

respondent’s motion for a continuance, however, the

court noted the lack of alternative dates to reschedule

the proceeding. Further, the respondent acknowledges

that, at the time of the requested continuance, her counsel made no representation to the court indicating how

long the respondent would be hospitalized. In light of

the fact that all party representatives and the petitioner’s witnesses were present on the first day of trial, we

conclude that delaying the proceeding by granting the

continuance would have resulted in the very economic

and administrative burdens on resources considered by

this prong. See In re Candids E., 111 Conn. App. 210,

218, 958 A.2d 229 (2008).

Second, as parens patriae, the state is ‘‘interested

in the accurate and speedy resolution of termination

litigation in order to promote the welfare of the affected

[children].’’ In re Alexander V., supra, 223 Conn. 565.

‘‘This furthers the express public policy of this state

to provide all of its children a safe, stable nurturing

environment.’’ State v. Anonymous, 179 Conn. 155, 171,

425 A.2d 939 (1979). ‘‘As the Appellate Court [has] correctly noted, [b]ecause of the psychological effects of

prolonged termination proceedings on young children,

time is of the essence . . . . Accordingly, we recognize

that the state has a vital interest in expediting the termination proceedings . . . .’’ (Citation omitted; internal

quotation marks omitted.) In re Alexander V., supra,

565. Accordingly, we consider the state’s interest, as

parens patriae, in minimizing the delay that a continuance would occasion in promptly determining the children’s uncertain future. See id.

The respondent urges this court to ‘‘only weigh the

delay that the continuance itself would have caused’’

in assessing the third Mathews factor. We agree with

the respondent that the mistrial was ‘‘not due to any

fault of [hers],’’ and it is likely that ‘‘any delay [caused

by a continuance] would have been short term, until

the [respondent] was released from the hospital.’’ In

assessing this prong, however, we do not consider in

isolation the delay that the requested continuance

would have caused. Rather, we consider the delay that

would result from granting the continuance in the context of the age and complexity of the termination proceedings, including, in the present case, the
undesirability of further delay given that the termination

petitions had previously been tried in full.

‘‘We have articulated a number of factors that appropriately may enter into an appellate court’s review of

a trial court’s exercise of its discretion in denying a

motion for a continuance. Although resistant to precise

cataloguing, such factors revolve around the circumstances before the trial court at the time it rendered

its decision, including: the timeliness of the request for

continuance; the likely length of the delay; the age and

complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants,

witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support

of the request; [and] the [party’s] personalresponsibility

for the timing of the request . . . .’’ (Emphasis added;

internal quotation marks omitted.) State v. Coney, 266

Conn. 787, 801–802, 835 A.2d 977 (2003).

In the present case, the department’s extensive

involvement with these children weighs the third

Mathews factor in favor of the petitioner. M, now age

five, has been removed from the respondent’s care on

four separate occasions. Since his birth in 2010, there

have been three instances where P has been removed

from the respondent’s care. During these removal periods, the children were placed in foster care. The respondent testified that she had abused an illegal substance,

specifically, cocaine, as recently as two weeks before

testifying. The state, as parens patriae, has a strong

interest in promoting the type of stability and permanency in the lives of these two children that they

undoubtedly deserve and need.

Additionally, the protracted nature of these termination proceedings is a factor to be considered in

assessing the third prong of Mathews. In the present

case, the termination petitions were previously tried in

full over three days in April, 2013. Those proceedings

concluded in a mistrial, however. Although the respondent is not at fault for the delay occasioned by the

mistrial, the occurrence of a mistrial strengthens the

state’s interest in minimizing delays in the second trial.

Delaying the matter by granting the continuance would

have placed an unnecessary burden on the state’s interest in providing permanency and stability to M and P.

See In re Candids E., supra, 111 Conn. App. 218–19.

Therefore, the third prong of Mathews favors the petitioner.

After carefully considering the three factors of the

Mathews balancing test, we conclude that, under these

circumstances, the court’s failure to grant the respondent a continuance did not violate her due process

rights to be present at the termination proceedings.

Accordingly, the court did not err in terminating the

respondent’s parental rights.
The judgments are affirmed.

In this opinion the other judges concurred.

* In accordance with the spirit and intent of General Statutes § 46b-142

(b) and Practice Book § 79a-12, the names of the parties involved in this

appeal are not disclosed. The records and papers of this case shall be open

for inspection only to persons having a proper interest therein and upon

order of the Appellate Court.

** October 28, 2014, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 Paul A., the father of P, consented to the termination of his parental

rights on November 4, 2013. In a memorandum of decision dated January

23, 2014, the court, Hon. Barbara M. Quinn, judge trial referee, terminated

the parental rights of Matthew P., the father of M, on the ground of abandonment and no ongoing parent-child relationship. Neither father is a party to

this appeal. Accordingly, we refer in this opinion to the respondent mother

as the respondent.

2 Specifically, the court, Hon. Barbara M. Quinn, judge trial referee, made

the following factual findings: ‘‘[The respondent] is now twenty-seven years

old and is the mother of the two children, [M and P]. She is the old[er] of

two children born to her parents. She herself had an extensive history

with [the department] as a child, due to her mother’s substance abuse,

incarceration and exposure to domestic violence. When she was [thirteen],

guardianship was transferred to her grandmother, who suffered from alcoholism and had difficulty controlling [the respondent’s] behaviors. [The

respondent’s] own use of illegal substances began a few years earlier, at

age eleven. She has been in and out of substance abuse treatment since

that time. She left [the department’s] care at the age of [eighteen], but

remained involved with adolescent services until she became [twenty-one].

She has a good relationship with her younger sister. . . .

‘‘[The respondent] is a convicted felon and has many arrests and convictions in her record. She suffers from the combination of significant drug

addiction and unsuccessfully treated mental health problems. [The] substances she has abused include alcohol, cocaine, heroin, PCP and marijuana.’’ The court further found that the respondent has been diagnosed with

‘‘Mood Disorder NOS, Attention Deficit Hyperactivity Disorder, Conduct

Disorder, Antisocial Personality Disorder, anxiety and depressive

symptoms.’’

3 Subsequently, on April 22, 2013, and on August 4, 2013, the respondent

filed motions to transfer guardianship of the children to JAC. The court,

Hon. Barbara M. Quinn, judge trial referee, denied both motions.

4 The court also denied the respondent’s motion to transfer guardianship

to JAC. The respondent has not challenged this decision on appeal.

5 General Statutes § 17a-112 (j) (3) (B) provides in relevant part: ‘‘[T]he

child (i) has been found by the Superior Court or the Probate Court to have

been neglected or uncared for in a prior proceeding, or (ii) is found to be

neglected or uncared for and has been in the custody of the commissioner

for at least fifteen months and the parent of such child has been provided

specific steps to take to facilitate the return of the child to the parent

pursuant to section 46b-129 and has failed to achieve such degree of personal

rehabilitation as would encourage the belief that within a reasonable time,

considering the age and needs of the child, such parent could assume a

responsible position in the life of the child . . . .’’

6 The record reveals that the respondent’s trial counsel made an oral

motion for a continuance, but did not formally allege a violation of the

respondent’s due process rights. Counsel for the petitioner, however, urged

the court to employ procedural safeguards ‘‘to both balance these children’s

needs for permanency with mother’s due process rights.’’ The court

responded by continuing with the proceedings, but provided that the respondent could call orrecall any witnesses on the second day oftrial. Accordingly,

in enacting these procedural safeguards in the respondent’s absence, it

appears that the court treated the respondent’s objection as alleging a deprivation of the constitutionally protected right to due process of law. Cf. In

re Lukas K., 120 Conn. App. 465, 471, 992 A.2d 1142 (2010), aff’d, 300 Conn.

463, 14 A.3d 990 (2011). Thus, we conclude that this constitutional issue

was properly preserved for appellate review, and, accordingly, we proceed

to evaluate the merits of the respondent’s due process claim.

7 The court in Lukas noted: ‘‘There can be, however, circumstances in a

termination hearing in which the mere presence, alone, of a respondent’s

counsel, is not sufficient for a court to proceed in the respondent’s absence.’’
(Internal quotation marks omitted.) In re Lukas K., supra, 120 Conn. App.

475. This court has identified one such instance where the respondent was

on his way to the courthouse after a writ of habeas corpus had been issued

to ensure his presence at the hearing. See In re Jonathan P., supra, 23

Conn. App. 212–13 (holding it would have been improperfor court to proceed

before respondent arrived, even if his counsel had been in courtroom at that

time). We conclude that, in the present case, the presence of the respondent’s

counsel was sufficient for the court to proceed in the respondent’s absence

in light of the other procedural safeguards employed by the court.