******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
IN RE DANIEL N.*

(SC 19731)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.*

Argued September 23—officially released December 6, 2016

Gregory T. D’Auria, solicitor general, with whom

were Renee Bollier, assistant attorney general, and, on

the brief, George Jepsen, attorney general, and Benjamin Zivyon and Michael J. Besso, assistant attorneys

general, for the appellant (petitioner).

Michael D. Day, for the appellee (respondent father).

David J. Reich filed a brief for the respondent

mother.
Opinion

EVELEIGH, J. In this certified appeal,1the petitioner,

the Commissioner of Children and Families,2 appeals

from the judgment of the Appellate Court reversing the

judgment of the trial court terminating the parental

rights of the respondent father, Jose N., to the minor

child, Daniel N.3 Specifically, the petitioner claims4

that

the Appellate Court improperly concluded that the failure to canvass the respondent prior to the commencement of the termination of parental rights trial in

accordance with the rule promulgated pursuant to the

exercise of our supervisory authority in In re Yasiel

R., 317 Conn. 773, 120 A.3d 1188 (2015), applies retroactively to the present case and requires reversal. See In

re Daniel N., 163 Conn. App. 322, 333, 135 A.3d 1260

(2016). Because we conclude that application of the

canvass rule announced in In re Yasiel R. to the present

case would exceed the scope of the exercise of our

supervisory authority in that case, we reverse the judgment of the Appellate Court.

The following facts and procedural history are relevant to our disposition of this appeal: ‘‘Daniel was born

in 2006. He has two half siblings, born in 2012, who

have a different father. Shortly after Daniel’s birth, the

Department of Children and Families (department)

became involved with the family, and the department

continued to be involved throughout a period of time

extending to and after the birth of Daniel’s half siblings,

because of substance abuse, domestic violence, and

mental health issues. On September 27, 2012, the court

granted the petitioner’s motion for an order of temporary custody for all three children, which led to an

adjudication of neglect and Daniel’s commitment to the

care and custody of the petitioner. Daniel was returned

to his mother’s care on January 24, 2013, under an order

of protective supervision. On September 17, 2013, the

petitionerinvoked a ninety-six hour hold on Daniel after

being informed by a representative of the Family Based

Recovery program that Daniel’s mother was in a drug

induced condition. The ninety-six hour hold was followed by a court order of temporary custody. The

respondent was incarcerated at this time, and thus was

not a potentialresource for Daniel’s care. The petitioner

moved that the order of protective custody be modified

to an order of commitment, which the court granted

on October 8, 2013. Daniel has remained in the care and

custody of the petitioner since that date.’’ Id., 324–25.

‘‘On December 26, 2013, the petitioner filed a petition

to terminate the parental rights of Daniel’s mother and

the respondent, as well as the parental rights of the

father of the half siblings. The termination of parental

rights trial was held on February 3, 4 and 5, and June

24 and 25, 2015. The respondent was represented by

counsel throughout the entire trial, and the respondent

testified at trial. Several witnesses testified at trial, and
multiple exhibits were admitted into evidence in this

fully contested case.’’ Id., 325. The trial court did not

canvass the respondent prior to trial or at any time

prior to the rendering of judgment.

The trial court filed the memorandum of decision

terminating the respondent’s parental rights approximately two weeks after publication of our decision in

In re Yasiel R. The respondent then appealed to the

Appellate Court claiming that In re Yasiel R. required

reversal of the trial court’s judgment because he did

notreceive a canvass before trial. Id., 333. The Appellate

Court agreed, reversed the judgment of the trial court,

and remanded the case for a new trial. Id., 337. This

certified appeal followed.

The petitioner claims that the Appellate Court

improperly concluded that this court’s holding in In

re Yasiel R. mandated reversal in the present case.

Specifically, the petitioner claims that our holding in

In re Yasiel R. was limited and that nothing this court

said in that case requires a reversal in cases in which

the trial concluded prior to the announcement of the

canvass rule. The petitioner also claims that, even if

the canvass rule applies in the present case, automatic

reversal would be inappropriate and reversal should be

considered on a case-by-case basis. On the other hand,

the respondent claims that the Appellate Court properly

reversed the trial court’s judgment because the canvass

rule applies retroactively to trials concluded after In

re Yasiel R. and the failure to provide the canvass in

the present case required automatic reversal. In support

of this conclusion, the respondent claims that the general rule is that judicial decisions apply retroactively

and our decision to reverse the judgment in In re Yasiel

R. is a retroactive application of the canvass rule. Additionally, the respondent claims that the failure to provide the canvass requires reversal because the basis for

reversal is the failure to provide the canvass, not ‘‘the

way in which the case is ultimately tried.’’ Because we

conclude that the exercise of our supervisory authority

in In re Yasiel R. is not applicable to the present case,

we reverse the judgment of the Appellate Court.

We begin with a review of the principles regarding our

supervisory authority. ‘‘It is well settled that [a]ppellate

courts possess an inherent supervisory authority over

the administration of justice. . . . Supervisory powers

are exercised to direct trial courts to adopt judicial

procedures that will address matters that are of utmost

seriousness, not only for the integrity of a particular

trial but also for the perceived fairness of the judicial

system as a whole. . . . Under our supervisory authority, we have adopted rules intended to guide the lower

courts in the administration of justice . . . .’’ (Internal

quotation marks omitted.) State v. Elson, 311 Conn.

726, 764–65, 91 A.3d 862 (2014). Our ‘‘supervisory

authority is not a form of free-floating justice, unteth-
ered to legal principle. . . . Rather, the rule invoking

our use of supervisory power is one that, as a matter

of policy, is relevant to the perceived fairness of the

judicial system as a whole, most typically in that it lends

itself to the adoption of a procedural rule that will

guide lower courts in the administration of justice in

all aspects of the [adjudicatory] process. . . . Indeed,

the integrity of the judicial system serves as a unifying

principle behind the seemingly disparate use of [this

court’s] supervisory powers.’’ (Citations omitted; internal quotation marks omitted.) In re Yasiel R., supra,

317 Conn. 790.

Generally, cases in which we have invoked our supervisory authority for rule making have fallen into two

categories.5 See State v. Carrion, 313 Conn. 823, 850,

100 A.3d 361 (2014); State v. Elson, supra, 311 Conn.

768 n.30. ‘‘In the first category are cases wherein we

have utilized our supervisory power to articulate a procedural rule as a matter of policy, either as [a] holding

or dictum, but without reversing [the underlying judgment] or portions thereof.’’ State v. Elson, supra, 768

n.30. ‘‘We invoke our supervisory authority in such a

case . . . not because the use of that authority is necessary to ensure that justice is achieved in the particular

case. Rather, we have determined that the [appellant]

received a fair trial and therefore is not entitled to the

extraordinary remedy of a new trial. Nevertheless, it

may be appropriate, in such circumstances, to direct

our trial courts to conduct themselves in a particular

manner so as to promote fairness, both perceived and

actual, in future cases.’’ (Emphasis in original.) State

v. Carrion, supra, 851–52. ‘‘In the second category are

cases wherein we have utilized our supervisory powers

to articulate a rule or otherwise take measures necessary to remedy a perceived injustice with respect to a

preserved or unpreserved claim on appeal.’’ State v.

Elson, supra, 768 n.30. In other words, in the first category of cases we employ only the rule-making power

of our supervisory authority; in the second category

we employ our rule-making power and our power to

reverse a judgment. State v. Carrion, supra, 851–52.

In light of our observation that ‘‘[o]ur cases have not

always been clear as to the reason for [the] distinction’’

between the two categories of cases; State v. Diaz, 302

Conn. 93, 107 n.11, 25 A.3d 594 (2011); we recently

clarified the distinction between the two categories.

See State v. Carrion, supra, 313 Conn. 849–53. In Carrion, we observed that the salient distinction between

these two categories of cases is that in one category

we afford a remedy and in the other we do not. Id.,

851–52. In the second category of cases, where we exercise both powers under our supervisory authority, the

party ‘‘must establish that the invocation of our supervisory authority is truly necessary because [o]ur supervisory powers are not a last bastion of hope for every

untenable appeal.’’ (Internal quotation marks omitted.)
Id., 851. In almost all cases, ‘‘[c]onstitutional, statutory

and procedural limitations are generally adequate to

protect the rights of the [appellant] and the integrity of

the judicial system.’’ (Internal quotation marks omitted.) State v. Coward, 292 Conn. 296, 315, 972 A.2d 691

(2009). ‘‘[O]nly in the rare circumstance [in which] these

traditional protections are inadequate to ensure the fair

and just administration of the courts’’ will we exercise

our supervisory authority to reverse a judgment. (Internal quotation marks omitted.) State v. Carrion, supra,

851. In such a circumstance, ‘‘the issue at hand, while

not rising to the level of a constitutional violation, is

nonetheless of [the] utmost seriousness, not only forthe

integrity of a particular trial but also for the perceived

fairness of the judicial system as a whole.’’ (Internal

quotation marks omitted.) Id. Although these standards

are demanding, they are also ‘‘flexible and are to be

determined in the interests of justice.’’ (Internal quotation marks omitted.) State v. Connor, 292 Conn. 483,

518 n.23, 973 A.2d 627 (2009).

In contrast, in cases in which we invoke our supervisory authority for rule making only, the case need not

present extraordinary circumstances to justify the invocation of our supervisory authority to announce the

rule. State v. Carrion, supra, 313 Conn. 852. Rather,

‘‘we are free to invoke our supervisory authority prospectively when prudence and good sense so dictate.’’

Id. ‘‘[B]ecause we are not imposing any remedy in the

case—let alone the extraordinary remedy of a new

trial—there is no need for this court to justify the use

of extraordinary measures prior to exercising its supervisory authority.’’ (Emphasis in original.) Id. Implicit in

this rationale for applying a lower standard in cases in

which we exercise our supervisory authority to engage

in rule making alone is that such an action will not

disturb any countervailing interests, whetherin the case

at hand or in any other case in which the trial has

concluded. The bench, the bar, and the public at large

will receive notice of the new procedural rule with the

release of the decision and will have the opportunity

to conform their conduct accordingly.

When we exercise our supervisory authority to

reverse a judgment, we are mindful of the interests

of the opposing party in the case. In these cases, the

opposing party substantially complied with the law.

See, e.g., In re Yasiel R., supra, 317 Conn. 787–88 (finding failure to canvass respondent did not violate procedural due process rights). Indeed, in our earliest

supervisory authority case, we recognized that a reversal ‘‘in the exercise of a court’s supervisory authority

must not be undertaken without balancing other interests which may be involved.’’ State v. Ubaldi, 190 Conn.

559, 572, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104

S. Ct. 280, 78 L. Ed. 2d 259 (1983). When we reverse a

judgment, the opposing party must retry the case and

contend with the ‘‘practical problems of memory loss
and unavailability of witnesses after much time has

elapsed . . . .’’ (Internal quotation marks omitted.)

State v. Payne, 260 Conn. 446, 464, 797 A.2d 1088 (2002).

In criminal cases, victims will have to endure another

trial. State v. Ubaldi, supra, 572. In termination of parental rights cases, permanence for the minor child is further delayed. See In re Davonta V., 285 Conn. 483,

495, 940 A.2d 733 (2008) (‘‘[t]ermination of a biological

parent’s rights, by preventing further litigation with that

parent, can preserve the stability a child has acquired

in a successfulfoster placement and, furthermore, move

the child closer toward securing permanence by removing barriers to adoption’’). These consequences are realized despite the fact that the opposing party rightfully

relied upon then prevailing law. See In re Yasiel R.,

supra, 317 Conn. 801–802 (Zarella, J., concurring and

dissenting). There are indeed ‘‘fairness and due process

concerns that are raised when a party is subjected to

a rule of which it had no prior notice.’’ Id. (Zarella, J.,

concurring and dissenting). It is only after weighing the

countervailing interests of the parties against whom the

new rule is applied and the interests of the party seeking

relief that we apply the rule in a particular case and

grant relief to the party seeking it.

With these principles in mind, we review the exercise

of our supervisory authority in In re Yasiel R. In that

case, after rejecting the respondent’s claim that the trial

court’s failure to provide a canvass prior to submitting

her case on the papers violated her procedural due

process rights, this court concluded that such a canvass

would enhance the ‘‘confidence in the integrity of the

judicial system.’’ Id., 794. In considering the contours of

the canvass requirement, we recognized the petitioner’s

concerns that such a canvass could impact trial strategy

and the attorney-client relationship. Id., 793–94. As a

result, we utilized our rule-making power under our

supervisory authority to articulate a rule that would

apply in every case, not just cases in which the parent

submits to a trial on the papers in the manner that the

respondent had in that case. Id., 794. If this rule making

alone had been the extent of the exercise of our supervisory authority in In re Yasiel R., it would not have

required a finding of extraordinary circumstances

because the rule applies prospectively. See State v. Carrion, supra, 313 Conn. 852. We did, however, find exceptional circumstances in In re Yasiel R., namely, the

fact the respondent submitted herself to a summary

procedure without any assurance that she understood

the risks of such a course of action. In re Yasiel R.,

supra, 317 Conn. 772–74. Consequently, we expanded

the scope of the exercise of our supervisory authority

enough to apply the canvass rule in that case and grant

relief to the respondent in that case. Our application

of the canvass rule to the facts of In re Yasiel R. was

based on a careful evaluation of the particular facts

and balancing of equities in that case.
Having considered the holding and the rationale of

In re Yasiel R., we conclude that the rule is not applicable in the present case. Our decision to expand the

scope of our supervisory authority in In re Yasiel R.

to apply the canvass rule and grantrelief was predicated

upon the extraordinary circumstances in that case and

should not be construed to reach all other termination

of parentalrights cases in which the trial has concluded.

Such an automatic expansion of the scope of the exercise of our rule-making power to reach all other cases

in which the trial has already concluded would disturb

the countervailing interests of the party or parties

against whom the rule would be imposed without

proper consideration of the countervailing interests of

those parties.

This is not to say that there are no circumstances in

which we would apply the canvass rule to a case in

which the trial has concluded. Indeed, in view of our

analysis in In re Yasiel R., if there is a case that presents

the same essential procedural history—namely, a case

where the respondent submitted himself or herself to

a summary procedure without any assurance that he

or she understood the risks of such a course of action,

the trial concluded before we announced our decision

in In re Yasiel R., and the respondent timely appealed—

we would apply the canvass rule to that case in order

to grant relief on the basis of the precedential value of

In re Yasiel R. This, however, would apply only to cases

in which the trial has concluded and the respondent’s

right of appeal has not been exhausted or waived. In

such a case, the rationale and holding of In re Yasiel R.,

consistent with the principles underlying the exercise of

our supervisory authority, would require reversal.

The conclusion reached by the Appellate Court illustrates the flaw in the respondent’s claim that the canvass rule should apply in the present case because we

granted relief in In re Yasiel R. This was a fully contested trial. The respondent, through counsel, crossexamined each of the five witnesses presented by the

petitioner.6

In addition, the respondent’s counsel crossexamined one of the mother’s witnesses and the mother

herself. The testimony of the respondent himselfreveals

that he fully grasped the nature and consequence of

the proceedings. The respondent testified that he knew

that the petitioner was asking the court to terminate

his parental rights. The respondent testified that he

‘‘would do anything in [his] power’’ to maintain his

relationship with Daniel. The respondent explained that

he rescheduled his cancer surgery because he ‘‘thought

[testifying] was a lot more important.’’ Although it

would have been preferable as a matter of policy for

the respondent in the present case to have received a

canvass before trial, the fact that he did not receive it

in the present case is not the kind of extraordinary

circumstance that would have warranted relief. See In
re Yasiel R., supra, 317 Conn. 793. Consequently, the

interpretation of the exercise of supervisory authority

in In re Yasiel R. urged by the respondent and adopted

by the Appellate Court does not remedy any apparent

injustice for the respondent but rather works an injustice upon the petitioner and Daniel in the form of unnecessary delay and wasted resources. Such a result is

flatly inconsistent with the principles that underlie the

exercise of supervisory authority.

The respondent claims, and the Appellate Court concluded, that application of the three part test for nonretroactive application of judicial decisions discussed in

Neyland v. Board of Education, 195 Conn. 174, 179,

487 A.2d 181 (1985),7 compels retroactive application

of the canvass rule to the present case. In re Daniel

N., supra, 163 Conn. App. 335.8 Because, however, we

are delineating the scope of the exercise of our supervisory authority, which by its very nature is prerogative,

we are not bound by the usual test for retroactivity.

Rather, the precise scope of the exercise of our supervisory authority is guided by the ‘‘unifying principle’’ of

the ‘‘integrity of the judicial system . . . .’’ (Internal

quotation marks omitted.) In re Yasiel R., supra, 317

Conn. 790. On the basis of the foregoing, we conclude

that our holding in In re Yasiel R. does not mandate

reversal in the present case.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

render judgment affirming the judgment of the trial

court.

In this opinion ROGERS, C. J., and PALMER, McDONALD, ESPINOSA and ROBINSON, Js., 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.

* This case originally was scheduled to be argued before a panel of this

court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Although Justice Espinosa was

not present when the case was argued before the court, she has read the

briefs and appendices, and listened to a recording of the oral argument

prior to participating in this decision.

1 We granted the petition by the Department of Children and Families for

certification to appeal limited to the following question: ‘‘Did the Appellate

Court correctly reverse the trial court’s judgment ordering the termination

of parental rights by concluding that this court’s decision in In re Yasiel

R., 317 Conn. 773, 120 A.3d 1188 (2015), controlled the result of [the present]

case?’’ In re Daniel N., 323 Conn. 928, A.3d (2016).

2 Because the Commissioner of Children and Families acts on behalf of

the Department of Children and Families,references to the petitionerinclude

both the Department of Children and Families and the Commissioner of

Children and Families.

3 The trial court also terminated the parental rights of the respondent

mother, Nadine D. Her separate petition for certification to appeal was

denied. In re Daniel N., 321 Conn. 908, 135 A.3d 280 (2016). The respondent

mother is, however, a party to the present appeal and has filed a brief.

Nevertheless, the present appeal pertains only to the parental rights of the

respondent father. For the sake of simplicity, we refer to the respondent

father as the respondent throughout this opinion.

4 We note that the counsel for the minor child has adopted the brief of
the petitioner.

5 We note that supervisory authority has been invoked for purposes other

than rule making. See, e.g., Blumberg Associates Worldwide,Inc. v. Brown &

Brown of Connecticut, Inc., 311 Conn. 123, 155, 84 A.3d 840 (2014) (supervisory authority permits reviewing court to raise unpreserved issue on appeal

sua sponte); State v. Reid, 277 Conn. 764, 778, 894 A.2d 963 (2006) (invoking

supervisory authority to hear untimely appeal); State v. Payne, 260 Conn.

446, 451–52, 797 A.2d 1088 (2002) (invoking supervisory authority in order

‘‘to redress repeated and deliberate misconduct by a prosecutor seeking to

increase the likelihood of conviction even though that conduct does not

necessarily require reversal as a due process violation’’).

6 The petitioner presented one witness, a social worker, on two separate

occasions, once on February 3, 2015, and once more over the course of

June 24 and 25, 2015. While the respondent’s counsel declined to crossexamine the witness on February 3, he did cross-examine the witness on

June 25.

7

‘‘In Neyland v. Board of Education, [supra, 195 Conn. 179], we discussed

the [three part] test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.

Ct. 349, 30 L. Ed. 2d 296 (1971), for determining whether a decision must

be applied prospectively only.Acommon-law decision will be applied nonretroactively only if:(1)it establishes a new principle oflaw, either by overruling

past precedent on which litigants have relied . . . or by deciding an issue

of first impression whose resolution was not clearly foreshadowed . . . (2)

given its prior history, purpose and effect, retrospective application of the

rule would retard its operation; and (3) retroactive application would produce substantial inequitable results, injustice or hardship.’’(Citation omitted;

internal quotation marks omitted.) Ostrowski v. Avery, 243 Conn. 355, 378

n.18, 703 A.2d 117 (1997).

8 The respondent also asserts that the fact that the canvass rule we

announced in In re Yasiel R. is to apply to all parents before trial in a

termination of parental rights case demonstrates that it should be applied

in the present case. To the extent that this claim forms a basis for retroactive

application, we reject it. We require the canvass rule to apply to all parents,

not regardless of whether the termination trial concluded priorto the release

of our decision in that case, but rather regardless of whether the parent is

represented by counsel or whether evidence presented is contested. In re

Yasiel R., supra, 317 Conn. 794.