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IN RE ZEN T.*

(AC 36083)

Gruendel, Beach and Harper, Js.

Argued March 6—officially released March 28, 2014**

(Appeal from Superior Court, judicial district of

Hartford, Juvenile Matters, Gleeson, 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, counsel for the minor child.
Opinion

GRUENDEL, J. The respondent mother, Heather S.,

appearing as a self-represented party, appeals from the

judgment of the trial court terminating her parental

rights as to her minor child, Zen T.1 On appeal, the

respondent claims that she was denied effective assistance of counsel and was thereby prejudiced. We disagree and, accordingly, affirm the judgment of the

trial court.

The record discloses the following relevant factual

and procedural history. In March, 2012, the respondent

and Cory T. brought the child, who was less than three

months old, to the emergency room because his left

leg was swollen. An X-ray, CAT scan, and MRI were

conducted, which revealed that ‘‘[the child] had sustained at least eight fractures, two additional long bone

irregularities . . . as well as bilateral chronic subdural

hematomas, for a total of eleven injuries. These injuries

occurred on multiple occasions over a time period of

at least three weeks.’’ In addition, ‘‘[a]ll of the injuries

resulted from trauma which could not have occurred

during the normal handling of an infant; nor could [the

child], who at three months of age was unable to stand,

crawl, or even roll over, have accidently injured

himself.’’

The petitioner, the Commissioner of Children and

Families, thereafter 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). The matter was tried to

the court . . . . The respondent mother was present

and was represented at trial by counsel. . . . The petitioner called nine witnesses and introduced twenty

exhibits. [The respondent] called nine witnesses, testified in her own behalf and introduced twenty-one

exhibits.’’

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)2 existed. It then ordered the termination of the

respondent’s parental rights. This appeal followed.

The respondent claims that she was denied effective

assistance of counsel and was prejudiced as a result of

this ineffectiveness. She therefore concludes that the

case should be remanded for a new trial. We disagree.

‘‘Ordinarily, we would not review the respondent’s

claim because it was not raised at trial, and, therefore,

the record is inadequate to review the claim. . . . The

evidence on the face of the record, however, demonstrates that the respondent was not prejudiced by the

representation she received at the termination of parental rights trial. The respondent’s claim, therefore, fails.’’

In re Dylan C., 126 Conn. App. 71, 90–91, 10 A.3d

100 (2011).

‘‘In Connecticut, a parent who faces the termination

of his or her parental rights is entitled, by statute, to the

assistance of counsel. . . . Because of the substantial

interests involved, a parent in a termination of parental

rights hearing has the right not only to counsel but to

the effective assistance of counsel. . . . In re Alexander V., 223 Conn. 557, 569, 613 A.2d 780 (1992).

‘‘In determining whether counsel has been ineffective

in a termination proceeding, we have enunciated the

following standard: The range of competence . . .

requires not errorless counsel, and not counsel judged

ineffective by hindsight, but counsel whose performance is reasonably competent, or within the range of

competence displayed by lawyers with ordinary training

and skill in [that particular area of the] law. . . . The

respondent must prove that [counsel’s performance]

fell below this standard of competency and also that

the lack of competency contributed to the termination

of parental rights. . . . A showing of incompetency

without a showing of resulting prejudice . . . does not

amount to ineffective assistance of counsel.’’(Emphasis

omitted; footnote omitted; internal quotation marks

omitted.) In re Dylan C., supra, 126 Conn. App. 91.

‘‘In making such a claim, it is the responsibility of the

respondent to create an adequate record pointing to

the alleged ineffectiveness and any prejudice the

respondent claims resulted from that ineffectiveness.’’

In re Christopher C., 129 Conn. App. 55, 59, 20 A.3d

689 (2011). ‘‘In the absence of findings by the trial court

in this regard, we directly review the trial court record.’’

In re Jah’za G., 141 Conn. App. 15, 36, 60 A.3d 392,

cert. denied, 308 Conn. 926, 64 A.3d 329 (2013).

The respondent claims that her trial counsel was

ineffective because (1) he was unprepared to adequately analyze and challenge the methods of evaluation

and conclusions drawn by the forensic psychologist

who evaluated the respondent and testified as an expert

witness at trial;3

(2) he failed to request a continuance

to secure reasonable time to prepare the case or a
meaningful defense;4

(3) he missed the deadline for

disclosure of evidence;5

(4) he required the respondent

to write her own questions when she chose to testify;6

(5) he failed to correct the record of statements she

previously made to the department;7 and (6) he wrote

in his brief that the department made reasonable efforts

to reunify the child with her.8

In the present case, we need not decide whether

the respondent’s counsel provided assistance that fell

below that of lawyers with ordinary training in termination of parentalrights cases because the respondent has

not demonstrated that hertrial counsel’s representation

resulted in prejudice to her. In order to demonstrate

prejudice, the respondent has the ‘‘burden of proving

that any alleged inadequacy of counsel could have

affected the outcome of the termination proceedings.’’

In re Mariah S., 61 Conn. App. 248, 269, 763 A.2d 71

(2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001).

The respondent does not specify in her brief how

any of the alleged deficiencies by her counsel resulted

in prejudice to her. She makes only conclusory statements, for example, stating that her counsel’s deficiencies ‘‘changed the perception of the trial court judge and

ultimately the outcome of the case.’’ Bald assertions

such as these are not enough to prove prejudice. The

respondent was required to demonstrate that the outcome of the case—the judgment terminating her parental rights—would have been different had the alleged

ineffectiveness of her counsel not occurred. She failed

to do just that. To the contrary, the record reveals that

any alleged ineffectiveness of her counsel did not result

in prejudice because there was overwhelming evidence

that supported the court’s judgment. First, the respondent’s parental rights were terminated on the strength

of the petitioner’s case that the child suffered serious

physical injuries and that those injuries were not adequately explained by the respondent, pursuant to § 17a112 (j) (3) (C). Moreover, as set forth in § 17a-112 (j) (3)

(C), ‘‘nonaccidental or inadequately explained serious

physical injury to a child shall constitute prima facie

evidence of acts of parental commission or omission

sufficient for the termination of parental rights.’’

Furthermore, the court ‘‘examined multiple relevant

factors [in making its decision] including the child’s

interests in physical safety, sustained growth, development, well-being, stability and continuity of his environment; his length of stay in foster care; the nature of his

relationship with his biological parents; the degree and

quality of contact maintained with his biological parents; and his genetic bond to the respondents. The court

. . . also balanced this child’s crucial need for physical

safety, emotional stability, validation, consistency and

permanency against the potential benefit of maintaining

a connection with his biological parents.’’ After considering each of these factors, the court determined that
it was in the best interests of the child to terminate the

respondent’s parental rights.

‘‘Moreover, our Supreme Court has indicated . . .

that the trial judge is a minister of justice rather than

strictly an umpire in a forensic encounter . . . .

Although as a trial judge must adhere to dictates of

impartiality, he or she, nevertheless, has the duty to

deter and correct misconduct of attorneys with respect

to their obligations as officers of the court to support

the authority of the court and enable the trial to proceed

with dignity. . . . Thus, a judge presiding over a proceeding wherein trial counsel had been woefully inadequate would not, consistent with judicial duty sit idly

by and permit the client to suffer the consequences. To

be sure, the trial judge may be more inclined to vigilance

in solemn proceedings, such as those terminating parental rights, wherein the indigent litigants have obtained

court-appointed counsel. . . . In re Jonathan M., 255

Conn. 208, 234, 764 A.2d 739 (2001).’’(Internal quotation

marks omitted.) In re Dylan C., supra, 126 Conn. App.

92–93. Nowhere in its memorandum of decision or in

the transcript of the trial did the court give any indication that the respondent was not receiving effective

assistance of counsel. And, the respondent has not identified where in the record that she alerted the court to

her dissatisfaction with counsel. See id.

After reviewing the respondent’s claim of ineffective

assistance of counsel and resultant prejudice, we conclude that the respondent did not meet her burden of

demonstrating that any alleged inadequacy of counsel

prejudiced her in a way that affected the outcome of

the termination proceeding. See In re Mariah S., supra,

61 Conn. App. 269. In light of the foregoing reasons,

the respondent’s ineffective assistance of counsel

claim fails.

The judgment is 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.

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

is the operative date for all substantive and procedural purposes.

1 The respondent father, Cory T., tendered a signed written consent to

terminate his parental rights to the court. The court thereafter canvassed

the father and found that his consent was knowing, voluntary, and with a

full understanding of all the consequences. It then accepted his consent and

terminated Cory T.’s parental rights to the child. Cory T. is not a party to this

appeal. Accordingly, we refer in this opinion to Heather S. as the respondent.

2 General Statutes § 17a-112 (k) provides in relevant part: ‘‘[I]n determining

whether to terminate parental rights under this section, the court shall

consider and shall make written findings regarding: (1) The timeliness,

nature and extent of services offered, provided and made available to the

parent and the child by an agency to facilitate the reunion of the child with

the parent; (2) whether the Department of Children and Families has made

reasonable efforts to reunite the family pursuant to the federal Adoption

Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any

applicable court order entered into and agreed upon by any individual or
agency and the parent, and the extent to which all parties have fulfilled

their obligations under such order; (4) the feelings and emotional ties of

the child with respect to the child’s parents, any guardian of such child’s

person and any person who has exercised physical care, custody or control

of the child for at least one year and with whom the child has developed

significant emotional ties; (5) the age of the child; (6) the efforts the parent

has made to adjust such parent’s circumstances, conduct, or conditions to

make it in the best interest of the child to return such child home in the

foreseeable future . . . and (7) the extent to which a parent has been

prevented from maintaining a meaningful relationship with the child by

the unreasonable act or conduct of the other parent of the child, or the

unreasonable act of any other person or by the economic circumstances of

the parent.’’

3 The psychologist’s ‘‘report indicate[d] that although [the respondent] did

not show signs of mental illness, [she] showed indications of substantial

psychological problems, which would prevent her from safely caring for an

infant.’’ The respondent claims that she ‘‘did not have any unresolved and

significant psychological issues and if those issues did not actually preclude

the possibility of her safe reunification with [the child], then [she] has been

prejudiced by counsel’s failure to adequately prepare for or challenge the

psychologist’s testimony.’’ (Internal quotation marks omitted.)

4 Since her counsel did not request a continuance, the respondent claims

that he did not adequately prepare for trial and that she was therefore

deprived of a meaningful defense of psychological fitness, a defense she

claims ‘‘could have been a solid defense if it was diligently pursued.’’

5 The respondent claims that she was prejudiced when her trial counsel

missed the deadline to disclose evidence, stating that ‘‘several powerful

pieces of evidence were never brought to light that would surely have

changed the perception of the trial court judge and ultimately the outcome

of the case.’’ She states that this evidence included a calendar of ‘‘many

things in order to watch [the child] and his diagnosed colic and acid reflux,’’

which would have ‘‘disproven certain allegations by the paternal grandparents and . . . given more credibility . . . to the [respondent’s] belief of

mental abuse by the paternal grandmother . . . .’’

6 She claims prejudice in this instance because her trial counsel insisted

that she write her own questions if she chose to testify. The respondent

states that this action ‘‘left an impression on the court of not having the

proper respect for his client’’ and forced her to be her own trial counsel at

a crucial time in the trial ‘‘knowing that she had a criminal case of neglect

pending where all things in these proceedings could be used against her in

criminal court.’’

7 The respondent claims that when her counsel failed to correct her statements, she was unable to give her side of the story.

8 The respondent asserts on appeal that she believed that her case was

mismanaged because of ‘‘altered forms, misleading notes and accepting

bias[ed] statements without lending the [respondent] the opportunity to

share her side of the story.’’ The respondent, however, has failed to challenge

any of the trial court’s findings regarding the reasonableness of the department’s efforts, and therefore this specific instance of her ineffective assistance of counsel claim is moot. See In re Alison M., 127 Conn. App. 197,

205–206, 15 A.3d 194 (2011) (review of respondent’s challenge to finding

that she was unable to benefit from reunification services was moot because

she failed to challenge trial court’s finding that department made reasonable

efforts to reunify her with children). As our Supreme Court has noted, ‘‘it

is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which

no practical relief can follow.’’ (Emphasis omitted; internal quotation marks

omitted.) In re Jorden R., 293 Conn. 539, 556, 979 A.2d 469 (2009).