Opinion
AC34324
10-16-2012
IN RE MESSIAH S.
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CONCURRENCE
PETERS, J., concurring. Canon 2 of the Code of Judicial Conduct " 'requires a judge to disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge's impartiality on the basis of all the circumstances.' . . . Disqualification is required even when no actual bias has been demonstrated if a judge's impartiality might reasonably be questioned 'because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.' . . . [P]revention of the appearance of impropriety is of vital importance to the judiciary and to the judicial process." (Citations omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 20-21, 970 A.2d 656 (2009).
I agree with the majority opinion's detailed description of the conduct of the trial court that led counsel for the respondent, Stacey S., the children's mother, to file a motion for disqualification. I recognize that, on appeal, the question is "whether the court's discretion has been abused." Joyner v. Commissioner of Correction, 55 Conn. App. 602, 609, 740 A.2d 424 (1999). I am, nonetheless, persuaded that the facts described by the majority establish that "an objective observer reasonably would doubt the judge's impartiality given the circumstances [of this case]." (Internal quotation marks omitted.) Johnson v. Board of Education, 130 Conn. App. 191, 209, 23 A.3d 68 (2011). From the outset of the trial, the judge not only vented his frustration but, at the very least, created an atmosphere that impaired the efforts of the respondent's counsel to present her case.
I also, however, agree with the majority opinion that the petitioner, the commissioner of children and families, provided ample evidence to sustain her burden of proof that the respondent's parental rights should be terminated. I am not persuaded that the improper denial of the respondent's motion for recusal was a structural error that requires reversal of the court's judgments in favor of the petitioner.
In Wiseman v. Armstrong, 295 Conn. 94, 104, 109-11, 989 A.2d 1027 (2010), our Supreme Court held that the improper failure of a trial court to honor a litigant's request for a jury poll pursuant to Practice Book § 16-32 was not a structural error, even though, concededly, compliance with the rule of practice was mandatory. In Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 635-37, 904 A.2d 149 (2006), our Supreme Court held that, in civil cases, awards of peremptory challenges not required by law are subject to harmless error review, and not structural error review, even if only one of the parties has received such awards. These cases are persuasive precedent for reviewing the trial court's failure to recuse itself in accordance with the ordinary common law rules for reversible error, rather than by the special rules that govern claims of structural error.
In the present case, despite the trial court's improper failure to recuse itself, the record establishes a sound factual basis for the court's decision to terminate the respondent's parental rights. The court made the requisite factual findings, and those findings were supported by the facts presented by the petitioner.
I respectfully concur in the judgment of the court.