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IN RE ZEN T.*
(AC 36525)
DiPentima, C. J., and Prescott and Pellegrino, Js.
Argued June 3—officially released July 9, 2014**
(Appeal from Superior Court, judicial district of
Middlesex, Child Protection Session at Middletown,
Elgo, J.)
Heather S., self-represented, the appellant (respon-
dent mother).
Amor C. Rosario, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Lisabeth B. Mindera, for the minor child.
Opinion
PER CURIAM. The self-represented respondent
mother, Heather S., appeals from the judgment of the
trial court denying her motion to open the judgment
terminating her parental rights. On appeal, she sets forth
a variety of issues, none of which has merit. We con-
clude, therefore, that the court did not abuse its discre-
tion in denying the motion to open. Accordingly, we
affirm the judgment of the trial court.
This court recently affirmed the judgment of the trial
court terminating the respondent’s parental rights as
to Zen T., the respondent’s minor child.1 See In re Zen
T., 149 Conn. App. 376, 88 A.3d 1286, cert. denied, 312
Conn. 911, A.3d (2014). In that opinion, we set
forth the following facts and procedural history, which
are relevant to the present appeal. ‘‘The petitioner, the
Commissioner of Children and Families . . . 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). . . .
‘‘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 fur-
ther found that all seven grounds for termination deline-
ated in § 17a-112 (k) existed. It then ordered the
termination of the respondent’s parental rights.’’2 (Foot-
note omitted; internal quotation marks omitted.) Id.,
378–79.
The sole issue raised in the respondent’s first appeal
was that she was denied effective assistance of counsel
and was prejudiced thereby. Id., 377. We rejected her
claim, concluding that she had ‘‘not demonstrated that
her trial counsel’s representation resulted in prejudice
to her.’’ Id., 382.
After she had filed her first appeal, the respondent
filed a motion in the trial court to open or set aside the
judgment on December 30, 2013, approximately four
months after that court’s judgment.3 She alleged ineffec-
tive assistance of counsel, unethical practices by the
department, insufficient evidence, the unconstitutional-
ity of § 17a-112, and a violation of her right to be heard
as the bases for her motion.4
The court held a hearing on January 16, 2014, at which
time the respondent filed an amended motion to open
and set aside the judgment. The court issued an oral
ruling denying the respondent’s amended motion
because she failed to allege or establish that granting
the motion was in the best interest of Zen T. as required
by General Statutes § 45a-719.5 This appeal followed.
Additional facts will be set forth as necessary.
We begin by setting forth the legal principles that
guide our analysis. ‘‘Our review of a court’s denial of
a motion to open . . . is well settled. We do not under-
take a plenary review of the merits of a decision of
the trial court to grant or to deny a motion to open a
judgment. . . . In an appeal from a denial of a motion
to open a judgment, our review is limited to the issue
of whether the trial court has acted unreasonably and
in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did.’’ (Internal quota-
tion marks omitted.) In re Ilyssa G., 105 Conn. App.
41, 45, 936 A.2d 674 (2007), cert. denied, 285 Conn. 918,
943 A.2d 475 (2008). ‘‘As to a termination of parental
rights judgment, before granting a motion to open, the
court must also consider the best interest of the child.
General Statutes § 45a-719.’’ (Internal quotation marks
omitted.) Id., 46; see also In re Samantha S., 300 Conn.
586, 588 n.3, 15 A.3d 1062 (2011); In re Travis R., 80
Conn. App. 777, 786, 838 A.2d 1000, cert. denied, 268
Conn. 904, 845 A.2d 409 (2004).6
The respondent first claims that the court improperly
found that it was not in Zen T.’s best interest to remain
with her. We review this claim under the clearly errone-
ous standard of review. In re Travis R., supra, 80 Conn.
App. 786. The court initially noted that the respondent
had not raised the issue of the best interest of Zen T.
in her motion as required by § 45a-719. At the conclusion
of the hearing, the court concluded that she had failed
to establish that opening the judgment was in Zen T.’s
best interest. Most of the respondent’s arguments attack
the merits of the underlying judgment terminating her
parental rights; such contentions, however, are not
properly raised by a motion to open filed outside of the
appeal period for the judgment of termination. Addition-
ally, we are not persuaded by her reasoning that keeping
a child from a parent ‘‘who had a meritorious defense
and is a good mother and truly innocent of wrong doing
and who had no reason to suspect the surreptitious
abuse of her son by his father’’ fails to account for the
child’s best interest. This statement essentially ignores
the termination proceedings that have taken place and
would require a reevaluation of those judicial determi-
nations.
The respondent also argues that she received ineffec-
tive assistance of counsel during the termination pro-
ceedings and, therefore, the court should have granted
the motion to open. As noted previously, in the respon-
dent’s appeal from the judgment terminating her paren-
tal rights, the sole issue raised was that she had received
ineffective assistance of counsel. We conclude that the
respondent is barred from raising claims of ineffective
assistance of counsel as a result of res judicata. See
State v. Jones, 98 Conn. App. 695, 700–701, 911 A.2d
353 (2006), cert. denied, 281 Conn. 916, 917 A.2d 1000
(2007); see also State v. Collazo, 115 Conn. App. 752,
757, 974 A.2d 729 (2009) (doctrine of collateral estoppel
barred defendant from relitigating claim decided in
prior appeal), cert. denied, 294 Conn. 929, 986 A.2d 1057
(2010). We conclude, therefore, that the respondent’s
claim that the court improperly found that it was not
in Zen T.’s best interest to remain with her must fail.
The respondent next claims that she was not allowed
to present evidence to support her motion to open. Our
review of the record reveals that the respondent did
not request an evidentiary hearing, and she has not
pointed us to any authority requiring the court to con-
duct such a hearing. See, e.g., American Honda
Finance Corp. v. Johnson, 80 Conn. App. 164, 168, 834
A.2d 59 (2003). We conclude, therefore, that the court
did not abuse its discretion in not holding an evidentiary
hearing with respect to the respondent’s motion to
open.
The respondent next claims that her fourteenth
amendment right to due process was violated because
she was not appointed counsel for the motion to open.
A parent has a statutory, not constitutional, right to
appointed counsel in termination of parental rights
proceedings. See In re Isaiah J., 140 Conn. App. 626,
640, 59 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d
333, cert. denied sub nom Megan J. v. Katz, U.S. ,
134 S. Ct. 317, 187 L. Ed. 2d 224 (2013); see also In re
Elysa D., 116 Conn. App. 254, 265, 974 A.2d 834 (no
federal or state constitutional right to appointed coun-
sel in termination of parental rights proceedings), cert.
denied, 293 Conn. 936, 981 A.2d 1079 (2009). We are
unaware of any statute requiring the court, sua sponte,
to appoint counsel for a party who has moved to open
a judgment terminating parental rights. We conclude,
therefore, that this claim must fail.
The respondent next claims that her fourteenth
amendment right to due process was violated because
the trial judge did not recuse herself from deciding the
motion to open. Specifically, the respondent alleges
that Judge Elgo ‘‘may have recused herself from the
[respondent’s] original termination of parental rights
trial.’’ The record reveals that the respondent did not
raise this recusal issue to the trial court and her claim
on appeal amounts to nothing more than speculation
that the trial judge should have recused herself. ‘‘[S]pec-
ulation is insufficient to establish an appearance of
impropriety. As this court has explained, [a] factual
basis is necessary to determine whether a reasonable
person, knowing all of the circumstances, might reason-
ably question the trial judge’s impartiality. . . . It is a
fundamental principle that to demonstrate bias suffi-
cient to support a claim of judicial disqualification, the
due administration of justice requires that such a dem-
onstration be based on more than opinion or conclu-
sion. . . . Vague and unverified assertions of opinion,
speculation and conjecture cannot support a motion to
recuse . . . .’’ (Internal quotation marks omitted.) Tra-
cey v. Tracey, 97 Conn. App. 278, 284, 903 A.2d 679
(2006). Accordingly, this claim fails.
The respondent finally claims that the court improp-
erly failed to grant her a continuance in order to finish
her amended brief or obtain private counsel. The peti-
tioner counters that the respondent never made an
explicit request for a continuance and, even if she had,
the denial of such a request would not amount to an
abuse of discretion. Our review of the record reveals
that although the respondent contemplated requesting
a continuance, she never actually made such a request.
In the absence of such a request, the court could not
abuse its discretion in not granting a continuance.
The judgment is affirmed.
* 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.
** July 9, 2014, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Zen T.’s father voluntarily consented to the termination of his parental
rights, which the court accepted after conducting a canvass. In re Zen T.,
149 Conn. App. 376, 377 n.1, 8 A.3d 1286, cert. denied, 312 Conn. 911,
A.3d (2014).
2
On August 30, 2013, the trial court issued a thorough memorandum of
decision that adjudicated Zen T. neglected and terminated the respondent’s
parental rights. In addition to the other required statutory factors necessary
to terminate parental rights, the court found, by clear and convincing evi-
dence, that the respondent’s acts of parental commission or omission denied
Zen T. the care necessary for his physical well-being because Zen T.’s various
fractures, classic metaphyseal lesions (fractures in the long bones resulting
from traumatic twisting, yanking or pulling and highly associated with child
abuse) and bilateral subdural hematomas constituted serious physical
injuries.
3
The respondent claims that § 17a-112 violates the federal and state consti-
tutions. Specifically, she argues that this statute ‘‘allows for a burden shift
in non-accidental or inadequately explained cases [of seriously physical
injury cases] to a preponderance of the evidence for termination of parental
rights cases.’’ We decline to consider this claim because the respondent’s
motion to open was filed more than twenty days after the date of the
underlying judgment.
‘‘[B]ecause the defendant did not file his motion to open within twenty
days from the date of the judgment, the appeal from the denial of that
motion can test only whether the court abused its discretion in failing to
open the judgment and not the propriety of the merits of the underlying
judgment.’’ (Internal quotation marks omitted.) Farren v. Farren, 142 Conn.
App. 145, 154, 64 A.3d 352, cert. denied, 309 Conn. 903, 68 A.3d 658 (2013).
This claim does not apply to the merits of the denial of the motion to open,
but rather challenges the propriety of the underlying judgment. Accordingly,
we decline to review this claim.
4
The respondent represented herself when she filed this motion. ‘‘[I]t is
the established policy of the Connecticut courts to be solicitous of [self-
represented] litigants and when it does not interfere with the rights of
other parties to construe the rules of practice liberally in favor of the [self-
represented] party. . . . Although we allow [self-represented] litigants
some latitude, the right of self-representation provides no attendant license
not to comply with relevant rules of procedural and substantive law. . . .
This is because [a] party who, unskilled in such matters, seeks to remedy
some claimed wrong by invoking processes which are at best technical and
complicated, is very ill advised and assumes a most difficult task. . . .
Nonetheless, while the court exhibits some degree of leniency toward a [self-
represented] appellant, it cannot entirely disregard established principles of
law.’’ (Internal quotation marks omitted.) Morneau v. State, 150 Conn. App.
237, 239–40 n.2, 90 A.3d 1003 (2014).
5
The trial court ruled: ‘‘It is clear that the . . . [respondent] needs to
make an adequate basis or assertion above and beyond some of the prelimi-
nary legal grounds regarding a motion to open or set aside but, above and
beyond that, she needs to be able to make an adequate claim or substantial—
a sufficient claim that this motion to open and set aside the judgment is in
the best interest of Zen.
‘‘And, based on the court’s prior decision, as well as representations, not
only made by the state and the child but even the [respondent’s] own
statements with respect to best interests . . . are not adequate or a suffi-
cient basis to find that it’s in the best interest.
‘‘I listened very carefully to the [respondent’s] arguments and the [respon-
dent’s] arguments continue to be really focused on her own ideas of what
is in the best interest of her child but not necessarily what is in Zen’s best
interest based on what his . . . needs are and what his situation is. She’s
not been able to address some of the underlying issues that supported Judge
Gleeson’s claims regarding—or Judge Gleeson’s findings with respect to
best interest.
‘‘So I believe she has not alleged that it’s in the best interests of Zen for
the motion to open to be—for the motion to set aside a judgment. It was
not claimed in her motion.
‘‘The court also finds it is not in the best interests for this case—for this
child’s case to be further litigated in this venue. There’s already . . . an
appeal that has been filed that I understand is pending before the Appellate
Court that raises some of these issues.
‘‘And so, given the strength of the evidence, the failure of [the respondent]
to make an adequate prima facie claim regarding a motion to reopen, the
court is going to deny the motion.’’
6
The respondent also claims that the court focused ‘‘mostly’’ on the best
interest of the child and failed to consider the two prong test that stems
from General Statutes § 52-212a. As § 45a-719 makes clear, in a motion to
open a judgment terminating parental rights, the court must find it would
be in the best interest of the child to grant such a motion. This claim,
therefore, fails.