Summary
reviewing under plain error doctrine unpreserved claim that trial judge had improper ex parte communication with counsel “because [the claim] implicate[d] the ethical conduct of the trial [judge] and reflect[ed] on the entire process of justice”
Summary of this case from Blumberg Assocs. Worldwide, Inc. v. Brown & Brown of Conn., Inc.Opinion
(9715)
The respondent mother appealed to this court from the judgment of the trial court terminating her rights with respect to her minor child. Held: 1. The respondent could not prevail on her claim that the trial court engaged in an improper ex parte communication when that court delivered a copy of a recent English case to counsel for the petitioner prior to the hearing; although it would have been better to have delivered copies of the case to all counsel simultaneously, the slight departure from preferred procedure did not warrant the drastic remedy of reversal. 2. The respondent's challenge to the factual findings of the trial court was unavailing; that court properly determined, on the basis of clear and convincing evidence, that no ongoing parent-child relationship existed.
Argued November 4, 1991
Decision released January 21, 1992
Petition by the commissioner of children and youth services to terminate the parental rights of the respondents with respect to their minor child, brought to the Superior Court in the judicial district of New Haven and tried to the court, Blue, J.; judgment terminating the respondents' parental rights, from which the respondent mother appealed to this court. Affirmed.
Philip W. Ball, for the appellant (respondent mother).
Ann-Marie DeGraffenreidt, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).
Lynn Jenkins, for the minor child.
The respondent mother appeals from the judgment terminating her parental rights to her daughter Shana, pursuant to General Statutes (Rev. to 1987) 17-43a (now General Statutes 17a-112). This action was brought by the commissioner of children and youth services by way of a petition to terminate the parental rights of Patricia M. and Carl M. with respect to their daughter Shana. The trial court found by clear and convincing evidence that there was no ongoing parent-child relationship between the respondent and Shana and that it was not in Shana's best interest to allow further time for such a relationship to develop. Furthermore, it found that termination of the respondent's rights was in Shana's best interest. The respondent appealed.
The trial court terminated the parental rights of Carl M. on the ground that he had abandoned Shana. General Statutes (Rev. to 1987) 17-43a (b)(1). Carl M. has not appealed. In this opinion, the term respondent refers to Patricia M. only.
The respondent raises two claims on appeal. First, she contends that the trial court engaged in improper ex parte contact with the assistant attorney general representing the petitioner. Second, she argues that the trial court should have found that Shana's foster parents and the department of children and youth services (DCYS) prevented her from maintaining a meaningful relationship with Shana. We affirm the judgment of the trial court.
The respondent's first claim concerns an alleged ex parte contact with the petitioner's counsel by the trial judge. The respondent argues that the delivery of a copy of an English House of Lords decision to the petitioner's counsel prior to the hearing was improper. The record discloses that the trial judge's independent research discovered the 1988 English case that he felt touched on many of the issues involved in the present case. Recognizing that most Connecticut attorneys may have limited access to English case law, the trial judge made a copy of the decision for each counsel. At the opening of court the next day, he handed one copy to the respondent's attorney and one copy to the attorney for the minor child and remarked that he had given a copy to the petitioner's attorney earlier that morning. From this scenario, the respondent's attorney asks us to conclude that the judge must have had an improper ex parte meeting with petitioner's counsel.
In re K.D., 1 App. Cas. 806 (H.L. 1988).
The remarks of the trial judge were as follows: "I should just state, for the record, Attorney Bakulski knows this, as of this morning, and the other two attorneys do not. For what it's worth, I was in the state library on a — last week, doing some research on a number of cases, and I found a — an English case from 1988, it's quite a recent case, by the House of Lords, which is the English equivalent of our Supreme Court, that touched on a lot of concerns raised in the trial. Not that it's, by any means, on all fours, and not that it's not distinguishable, and not that our system's laws are not somewhat different from the English . . . [and] not that I thought counsel should be aware of it. Attorney Bakulski, I gave a copy this morning, if I could, Mrs. Lamb, I just made copies for all counsel, knowing that sometimes your English law libraries tend to get a little bit out of date when you're in private practice. And you can read them, that's nothing I expect you to be prepared on today, by any means, but, you might want to read it, at your convenience."
The petitioner argues that we should not review this claim because it was not raised at trial, but rather was brought up for the first time in the respondent's brief. Despite the merit of this argument, we elect to review the claim under the plain error doctrine because it implicates the ethical conduct of the trial court and reflects on the entire process of justice. Practice Book 4185; In re Jonathan P., 23 Conn. App. 207, 211, 579 A.2d 587 (1990). It is firmly established that "any ex parte communication concerning a pending proceeding between a lawyer and a judge is prohibited by both the rules of professional conduct and the code of judicial conduct. Connecticut Rules of Professional Conduct, Rule 3.5; Connecticut Code of Judicial Conduct, Cannon 3.A. (4)." State v. John, 210 Conn. 652, 672, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989).
Impartiality on the part of a judge is a fundamental tenet of our system of jurisprudence. Furthermore, not only is actual impartiality required but also the appearance of impartiality. Bonelli v. Bonelli, 18 Conn. App. 207, 211, 557 A.2d 559 (1989), rev'd, 214 Conn. 14, 570 A.2d 189 (1990). "[J]ustice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954). The trial judge must be ever vigilant to consider his conduct from the viewpoint not only of an unbiased observer, but also of the biased litigant who is desperately searching to find a flaw in the judge's conduct. To paraphrase the Scottish poet Robert Burns, Oh, what a power to give us, to see ourselves as others see us.
The actual text of Robert Burns' verse from To a Louse is: "O, wad some power the giftie gie us To see oursels as ithers see us! It wad frae many a blunder free us And foolish notion."
To find bias and misconduct on the part of the trial judge in the present case, however, requires a stretch of our legal imagination beyond the elasticity contained therein. Our examination of the record discloses a hard working trial judge who commendably wanted to share the fruits of his research with the attorneys before him. Although it would have been a better procedure for the trial judge to have delivered copies of the English decision to all counsel simultaneously, this slight departure from preferred procedure does not, in this case, warrant the drastic remedy of reversal.
The respondent's second claim is that the trial court improperly failed to find that unreasonable conduct by DCYS and Shana's foster parents prevented her from maintaining a meaningful relationship with Shana. The respondent challenges the factual basis for the trial court's decision. We cannot retry the facts. In re Noel M., 23 Conn. App. 410, 418, 580 A.2d 996 (1990). "On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported. . . . The trial court, following the mandates of General Statutes [Rev. to 1987] 17-43a, properly determined, on the basis of clear and convincing evidence, that no ongoing parent-child relationship existed." (Citation omitted.) In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991).