In re Yasiel R.

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 IN RE YASIEL R.—SECOND CONCURRENCE AND DISSENT

ESPINOSA, J., concurring in part and dissenting in
part. I agree with parts I and II of the majority opinion.
Specifically, I agree with the majority that the Appellate
Court incorrectly construed the third prong of State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
to require an appellant to produce binding precedent
directly on point in order to establish that ‘‘the alleged
constitutional violation clearly exists and clearly
deprived the [respondent] of a fair trial’’ in order to
prevail under Golding. I also agree with the majority
that the respondent mother, Ashley P. (respondent),
has not demonstrated that her right to due process was
violated by the trial court’s failure to personally canvass
her regarding her decision to allow the court to decide
whether to grant the petition1 of the petitioner, the
Commissioner of Children and Families, to terminate
the parental rights of the respondent on the basis of
the documentary evidence submitted by the petitioner,
without the presentation of testimony.
I write separately, however, to express my disagree-
ment with the majority’s determination, in part III of
its opinion, to invoke this court’s supervisory authority
to reverse the judgment of the Appellate Court in the
present case in accordance with the new rule
announced in its decision, which requires the trial court
to personally canvass a parent who is represented by
counsel before accepting a waiver of the right to a full
trial and a decision not to contest the exhibits offered
by the Department of Children and Families (depart-
ment) in support of a petition to terminate parental
rights. Today’s decision exemplifies the routine manner
in which this court invokes its supervisory authority of
late. Certainly, the issue at stake is an important one—
ensuring that a parent’s waiver of the right to trial and
to contest the department’s evidence in a termination
proceeding is knowing, intelligent and voluntary. The
majority has not persuasively explained, however, why
representation by counsel is not sufficient to ensure
that a parent’s waiver comports with the requirements
of due process. The majority, therefore, has not demon-
strated how its rule is required for the administration
of justice. Nor has the majority offered any explanation
as to why it believes this case presents the type of
extraordinary circumstance that justifies the invocation
of this court’s supervisory authority in order to reverse
the judgment of the Appellate Court. My review of the
record reveals that there was no question that the
respondent, who was represented by counsel and who
previously had her rights terminated with respect to
three of her other children, was quite familiar with the
consequences of the termination of her parental rights.
There is no indication in the record that counsel was
experiencing any difficulty communicating with the
respondent or that the respondent had taken issue with
the strategic decisions of counsel at any point during
these protracted proceedings. Nor has the respondent
alleged that her counsel’s performance was deficient.
Indeed, the record provides support for the conclusion
that the respondent’s counsel was justified in resting on
the papers, given the overwhelming, negative testimony
about the respondent that would have been presented
had this case gone to trial. By invoking its supervisory
authority, therefore, the majority second-guesses the
strategy choices of counsel and forces the children who
are the subject of the petition to suffer additional, need-
less delay before being placed permanently. Accord-
ingly, I respectfully dissent with respect to part III of
the majority opinion.
I have said it before—this court exercises its supervi-
sory authority ‘‘too broadly, too readily and too often.’’
Lapointe v. Commissioner of Correction, 316 Conn.
225, 457, 112 A.3d 1 (2015) (Espinosa, J., dissenting).
In light of recent decisions expanding the scope of that
authority; see id., 268–72; Blumberg Associates World-
wide, Inc. v. Brown & Brown of Connecticut, Inc., 311
Conn. 123, 144–66, 84 A.3d 840 (2014); as well as the
court’s increasingly routine reliance on what is sup-
posed to be an extraordinary power, I believe that it is
time to take stock and consider the ramifications of
the court’s existing jurisprudence on the scope of that
authority. Because that power is now entrenched in our
jurisprudence, I do not believe that it is possible to
abandon it, but it is time that we take seriously the
oft recited mantra that this court’s supervisory power
should be exercised rarely. See, e.g., State v. Edwards,
314 Conn. 465, 498, 102 A.3d 52 (2014); State v. Hines,
243 Conn. 796, 815, 709 A.2d 522 (1998).
Three decades—that is the extent of this court’s his-
tory of reliance on its inherent supervisory authority.
Thirty years, out of the almost 230 year history of this
court’s published opinions. I believe that it is fair to
say that the supervisory authority of this court is a
relatively new power. In light of its brief history, it is
perhaps not surprising that we have not yet considered
the ramifications of how we have used the power thus
far. This court’s recent decisions, however, make it very
clear that the time has come to have that discussion.
See, e.g., Lapointe v. Commissioner of Correction,
supra, 316 Conn. 268–72; Blumberg Associates World-
wide, Inc. v. Brown & Brown of Connecticut, Inc.,
supra, 311 Conn. 144–66. In order to better understand
the nature of our supervisory power and the need to
exercise it with ‘‘great caution’’; State v. Santiago, 245
Conn. 301, 343, 715 A.2d 1 (1998) (Callahan, C. J.,
concurring and dissenting); I begin by reviewing the
origins of our reliance on it, trace the path of that power
to its present day form, and, finally, explain why the
present case is not an appropriate one for the exercise
of that authority.
 Preliminarily, I offer the following observation. Unre-
strained exercise of this court’s supervisory authority
is dangerous because it erodes the predictability that
is essential to the rule of law. The best perspective from
which to understand the danger is from the vantage
point of the litigants who appear before this court. Mas-
sachusetts Supreme Judicial Court Justice Oliver Wen-
dell Holmes, later a justice of the United States Supreme
Court, expressed it aptly: ‘‘When we study law we are
not studying a mystery but a well known profession.
We are studying what we shall want in order to appear
before judges, or to advise people in such a way as to
keep them out of court. The reason why it is a profes-
sion, why people will pay lawyers to argue for them or
to advise them, is that in societies like ours the com-
mand of the public force is intrusted to the judges in
certain cases, and the whole power of the state will be
put forth, if necessary, to carry out their judgments and
decrees. People want to know under what circum-
stances and how far they will run the risk of coming
against what is so much stronger than themselves, and
hence it becomes a business to find out when this dan-
ger is to be feared. The object of our study, then, is
prediction, the prediction of the incidence of the public
force through the instrumentality of the courts.’’ O.
Holmes, ‘‘The Path of the Law,’’ 10 Harv. L. Rev. 457
(1897).
Justice Holmes’ remarks clarify that predictability
is not an abstract value, revered in a vacuum by the
proponents of judicial restraint. It is a value that has
pragmatic worth, because predictability ensures that
the law works for those who need it. The parties who
argue before this court through their attorneys are enti-
tled to rely on the predictability of the rule of law. They
come before the court with the expectation that the
existing precedents will determine the resolution of the
appeal, and they make their decisions and prepare their
cases on the basis of that expectation. When this court
decides appeals more and more frequently on the basis
of supervisory authority, however, we add a level of
mystery to the law that defeats expectation. No one
wants to pay an attorney to speculate as to whether
this court will decide to invoke its supervisory author-
ity. And no attorney wants to be placed in the position
of trying to guess whether his or her appeal will be the
next instance in which the court exercises that authority
rather than resting the decision on the merits. Reserving
our supervisory authority for the very rare instances
when it is appropriate, by exercising self-restraint, and
adhering consistently to guidelines for its exercise will
protect the predictability that is essential to the rule
of law.
I
HISTORY OF THIS COURT’S EXERCISE OF
SUPERVISORY AUTHORITY
 A
Origin of the Authority
The origin of this court’s supervisory authority tells
the entire story—our power is self-conferred, unan-
chored, and, unless we ourselves restrain it, unlimited.
This court first invoked its inherent supervisory author-
ity in 1983, in State v. Ubaldi, 190 Conn. 559, 569–75,
462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280,
78 L. Ed. 2d 259 (1983), in which the court reversed
the defendant’s conviction on the basis of prosecutorial
impropriety. The defendant in Ubaldi had been con-
victed of various counts of larceny in connection with
the conversion of tax funds that he had collected on
behalf of the city of Waterbury. Id., 560. During cross-
examination of the defendant, the prosecutor asked
whether a certain person, Nick Jamele, to whom the
defendant apparently had disbursed city funds, was the
defendant’s ‘‘ ‘bookie . . . .’ ’’ Id., 561. The court sus-
tained the defendant’s objection to the question and
instructed the jury to disregard it. Id., 561–62 n.2. The
state subsequently attempted to call Jamele as a wit-
ness. Id., 564. During the state’s proffer to the court
outside the presence of the jury, however, Jamele suc-
cessfully invoked his fifth amendment privilege against
self-incrimination. Id. Notwithstanding both Jamele’s
unavailability as a witness and the trial court’s earlier
ruling that had barred the state from implying an unsa-
vory connection between the defendant and Jamele,
the prosecutor commented during closing argument on
the defendant’s failure to call Jamele as a witness, thus
reviving the court prohibited suggestion that the defen-
dant had paid off gambling debts to Jamele with city
funds. Id.
This court characterized the prosecutor’s conduct as
deliberate, and undertaken in ‘‘total disregard’’ of the
intent of the trial court’s rulings, which was to protect
the defendant ‘‘against consideration by the jury of irrel-
evant and prejudicial matters.’’ Id., 567. The court’s
ability to deter such conduct, the court explained, is
essential to ‘‘ ‘the integrity of the judicial system.’ ’’ Id.,
572. Accordingly, the court rejected the state’s claim
that it should prevail on appeal because the defendant
had not been deprived of a fair trial by the improper
remarks, and announced that ‘‘[a]n appellate court has
a certain inherent supervisory authority over the admin-
istration of justice . . . in the trial courts below that
permits action to deter prosecutorial misconduct which
is unduly offensive to the maintenance of a sound judi-
cial process.’’ (Citation omitted; internal quotation
marks omitted.) Id., 570. Because of the flagrant nature
of the impropriety, the court reasoned, a mere rebuke
without the concrete sanction of reversal would not
deter counsel from repeating the offense. ‘‘Government
counsel, employing such tactics, are the kind who, eager
to win victories, will gladly pay the small price of a
ritualistic verbal spanking.’’ (Internal quotation marks
omitted.) Id., 571. Thus, because the conduct at issue
would not constitutionally mandate a new trial, the
court viewed its reliance on its supervisory authority
as necessary under the extraordinary circumstances of
the case. Id., 571–72.
Significantly, the court in Ubaldi established several
prerequisites that justified the use of its new power. As
I have already indicated, the court viewed its resort to
the power to be driven by necessity. The court under-
stood the case to implicate an important issue, nothing
less than the integrity of the judicial system itself. Id.,
568. In addition, the court emphasized that the case
presented extraordinary circumstances that justified
the invocation of its supervisory authority. The prosecu-
tor’s behavior was extreme—the court stressed the fla-
grant and deliberate nature of the impropriety; id., 571;
which ‘‘undermine[d] the authority of the trial court’s
ruling . . . .’’ Id., 574. And the circumstances of the
case were sui generis, prompting the court to observe
that it had never been presented with ‘‘a situation pre-
cisely like the one before us.’’ Id., 566. The court also
recognized that its new authority ‘‘must not be under-
taken without balancing other interests which may be
involved.’’ Id., 572. For instance, ‘‘[t]he trauma which
the victim of a heinous crime might undergo by being
forced to relive a harrowing experience or the practical
problems to be encountered in retrying a case several
years after the event require a cautious approach.’’ Id.
Because, however, there were no ‘‘highly significant
competing social interests [to] outweigh the important
judicial consideration of restraining serious prosecu-
torial misconduct,’’ the court deemed it an appropriate
circumstance in which to exercise its supervisory
authority. Id., 573.
The court made clear, therefore, that it viewed its
new supervisory authority as a power only to be used
in limited, exceptional circumstances, invoked only
when its exercise is necessary and the interests involved
are of the utmost importance, and when an evaluation
of the interests involved reveals that the balance weighs
in favor of invoking the authority. Applied properly,
these considerations should yield the result that our
supervisory power is reserved for the rare instance in
which this court’s reliance on it is appropriate.2
The court looked to federal authority to justify its
claim to this new power. Given the ‘‘inherent’’ nature
of the supervisory power, one would expect the federal
decisions on which the court in Ubaldi relied to stem
from some incipient authority—constitutional provi-
sions, a very early decision of the United States
Supreme Court, colonial law, or perhaps even English
common law. Such expectations are doomed to disap-
point. ‘‘Inherent’’ supervisory authority is a twentieth
century concept. A. Barrett, ‘‘The Supervisory Power
of the Supreme Court,’’ 106 Colum. L. Rev. 324, 387
(2006). Like the court in Ubaldi, when the United States
Supreme Court first invoked its supervisory power in
McNabb v. United States, 318 U.S. 332, 340, 63 S. Ct.
608, 87 L. Ed. 819 (1943), the court did so in response
to governmental misconduct. Specifically, the facts of
McNabb suggested that the petitioners had been held
without bail and questioned for two days by law
enforcement officials, without having been brought
before a United States commissioner or a judge. Id.,
334–38. In analyzing the petitioners’ claim that the fore-
going facts warranted reversal of their convictions, the
court eschewed any discussion of constitutional issues,
deeming such discussion ‘‘unnecessary.’’ Id., 340.
Instead, the court announced that ‘‘[j]udicial supervi-
sion of the administration of criminal justice in the
federal courts implies the duty of establishing and main-
taining civilized standards of procedure and evidence.’’
Id. The court claimed in McNabb that it had been exer-
cising this authority all along, on the basis that ‘‘this
[c]ourt has, from the very beginning of its history, for-
mulated rules of evidence to be applied in federal crimi-
nal prosecutions.’’ Id., 341.
None of the authorities cited by McNabb, however,
purported to invoke the court’s supervisory authority,
nor did they provide support, either for the proposition
that the court has the authority to engage in rule making
by way of adjudication, or, as happened in McNabb, to
apply a new rule to the case at hand. Instead, the cases
cited in McNabb merely applied established legal princi-
ples to the facts of the particular case in order to deter-
mine the proper evidentiary rule. See, e.g., United States
v. Gooding, 25 U.S. (12 Wheat.) 460, 469, 6 L. Ed. 693
(1827) (The court rejected the defendant’s claim that
the witness’ testimony regarding certain admissions
made by the defendant’s agent was inadmissible, on
the basis that ‘‘[i]n general the rules of evidence in
criminal and civil cases are the same. Whatever the
agent does, within the scope of his authority, binds his
principal, and is deemed his act.’’); United States v.
Furlong, 18 U.S. (5 Wheat.) 184, 199, 5 L. Ed. 64 (1820)
(rejecting proposition that only admissible testimony
as to character of ships plundered by pirates was limited
to documentary papers, and citing to various legal prin-
ciples in support of conclusion, including fact that laws
requiring such papers to be on vessels are not for pur-
poses of criminal prosecution, but, rather, purposes of
finance and commerce); see also S. Beale, ‘‘Reconsid-
ering Supervisory Power in Criminal Cases: Constitu-
tional and Statutory Limits on the Authority of the
Federal Courts,’’ 84 Colum. L. Rev. 1433, 1435 (1984)
(‘‘McNabb represented a substantial departure from the
role played by the [United States] Supreme Court during
the first 140 years of its existence. The [c]ourt’s asser-
tion of supervisory authority rested on the assumptions
that the federal courts would follow federal procedure
and that the [c]ourt was the appropriate body to exer-
cise overall responsibility for developing and supervis-
ing the implementation of this procedure, particularly
in criminal cases. Prior to 1930 neither of these assump-
tions was valid.’’).3
Nor did the court in McNabb offer any constitutional
or statutory authority to justify its claim to supervisory
authority.4 The power, therefore, is untethered to any
external authority. The trail of its common-law roots
ends with McNabb, and it is not derived from any legisla-
tive or constitutional grant of power, but rather is a
power that the court conferred upon itself.
In Ubaldi, therefore, this court moored itself to a
ship that had no anchor. Our supervisory authority is
inherent only in the sense that it is a power that we
ourselves created by stating that we have it. Its strength
and authenticity stem only from the confidence with
which we assert that we are entitled to use it. This
recognition is critical toward understanding why we
must exercise that power with great caution. I pre-
viously have observed that when this court exercises
its supervisory authority, ‘‘our use of it is virtually unre-
viewable . . . .’’ Lapointe v. Commissioner of Correc-
tion, supra, 316 Conn. 455–56 (Espinosa, J., dissenting).
The origin of our authority, which reveals that the
power is a self-proclaimed one, explains why our use
of the power is virtually unreviewable and can only be
limited by this court. Only by doing so can we protect
the predictability of the rule of law. We often have
stated that our supervisory authority is not ‘‘a form of
free-floating justice, untethered to legal principle
. . . .’’ (Internal quotation marks omitted.) State v.
Elson, 311 Conn. 726, 768, 91 A.3d 862 (2014), quoting
State v. Pouncey, 241 Conn. 802, 813, 699 A.2d 901
(1997). That statement is only true as long as we hold
ourselves to it. And we have not been doing that.
B
Evolution of the Doctrine
A review of the history of this court’s reliance on its
supervisory authority since Ubaldi reveals a gradual
and steady increase in reliance on the authority for the
first twenty-five years, then a sharp spike in the past
five years, both in the frequency with which the court
invokes the power and the breadth of its application.
As an overview, since and including Ubaldi, this court
has invoked its supervisory authority approximately
forty-four times.5 In the 1980s, the court relied on its
supervisory authority only four times.6 Between 1990
and 1999, the court used its supervisory power fourteen
times;7 between 2000 and 2009, the court invoked its
power twelve times.8 Astonishingly, in the past five
years, the court already has relied on its supervisory
authority, including the exercise by the majority in the
present case, fourteen times, and we are not quite half-
way through the decade.9 To put that number in per-
spective, approximately one third of this court’s
decisions invoking supervisory authority have been
issued within the past five years.
Although the drastically increased frequency of this
court’s reliance on supervisory authority suggests that
there may be a problem, the numbers alone are not
conclusive. For instance, it could be possible that within
the past five years there simply have been many more
extraordinary circumstances that have justified a more
frequent invocation of our supervisory power. On the
other hand, perhaps the court’s decisions initially
adhered to the limitations set forth in Ubaldi, and then
gradually abandoned those limits. Although it may be
argued that the latter is somewhat closer to the truth,
it does not give a complete picture of the problem,
which is a complex one. This court’s supervisory deci-
sions have never treated the limitations set forth in
Ubaldi as binding in any sense of the word—from the
beginning, we have sometimes adhered to those limits,
but in the majority of cases, we have not given any
indication that we have even considered them prior to
invoking our authority.
Two principles might explain both the inconsistency
in this court’s consideration of the limits on its supervi-
sory authority, as well as the substantial, recent
increase in the exercise of that authority. First, and
most fundamentally, despite the oft repeated refrain
that this court’s supervisory power is not a form of ‘‘free-
floating justice’’; State v. Santiago, supra, 245 Conn. 333;
it is the inherent nature of a self-conferred power that
it lacks limits unless those are self-imposed. Second,
after the court announced the existence of its supervi-
sory authority in 1983, the court seems simply to have
assumed its validity and has not given significant con-
sideration to establishing and adhering to any parame-
ters for its exercise. With the passing of time, absent
any consistent adherence to self-imposed limitations on
the power, the court has become less and less capable of
disciplining itself to view its supervisory authority as
extraordinary. The court has become habituated to its
use, and now treats its supervisory power as a panacea
for any difficult problem confronting it.
It is neither possible, nor helpful, to discuss all forty-
four decisions in illustrating the course that our law on
supervisory authority has taken over the past thirty
years. I restrict my discussion to some of the earlier
decisions, general remarks regarding trends in the
intervening years, and a closer look at a few recent
decisions. I also have limited my discussion to the two
types of exercise of supervisory authority that are at
issue in the present case: applying a newly announced
rule to reverse the judgment that is the subject of the
appeal; and announcing a new rule with prospective
application. See State v. Elson, supra, 311 Conn. 768–71
n.30 (collecting cases).10 I first consider the evolution
of our supervisory power in cases in which we have
applied a new rule to the pending appeal, then turn to
decisions that have announced a new rule that is to be
applied prospectively. I conclude that both lines of
cases demonstrate a lack of focus on the importance
of self-restraint in invoking our supervisory powers.
After Ubaldi, the court did not rely on its supervisory
authority to reverse the judgment at issue in an appeal
for twelve years. Viewed in context, State v. Jones, 234
Conn. 324, 662 A.2d 1199 (1995), represented a modest
exercise of the court’s supervisory authority, and
appears to have been mindful of the guidelines that
the court established in Ubaldi. The court resolved the
appeal on the merits, applying the laws of severance
and joinder, together with principles of statutory con-
struction, to hold that, when a defendant is charged
with capital felony in violation of General Statutes (Rev.
to 1995) § 53a-54b (3), he is entitled to be tried in a
bifurcated proceeding. Id., 343–44. The standard of
review of the trial court’s denial of the defendant’s
motion to bifurcate was whether the trial court abused
its discretion and the court was loath to reverse the
judgment on the merits. Id., 343. The court explained:
‘‘We do not demand or necessarily expect our trial
courts to create new roads of practice and procedure
never before traveled in our jurisdiction.’’ Id., 346.
Accordingly, the court relied on its supervisory author-
ity to reverse the judgment. Id., 346–47. A reasonable
way to read Jones is that the court viewed the exercise
of supervisory authority as necessary because the alter-
native would have been absurd—to hold that the trial
court abused its discretion by failing to adhere to a
rule that had not yet been articulated by this court. In
addition to finding necessity, the court also relied on
extraordinary circumstances presented in Jones, citing
to the ‘‘high risk of prejudice to the defendant on the
present record . . . .’’ Id., 346. The court also consid-
ered the countervailing interests, concluding that the
high risk of prejudice, at least in Jones, outweighed the
state’s interest in judicial economy. Id.
The court’s very next exercise of its supervisory
authority in which it applied a new rule to a pending
appeal, however, evidenced none of the restraint shown
in Jones. In State v. Coleman, 242 Conn. 523, 700 A.2d
14 (1997), not only did the court fail to offer any explana-
tion as to why it was appropriate to resolve the case
on its supervisory authority, the court expressly stated
that it did not need to resolve the state constitutional
issue raised by the defendant because the issue could
be resolved by invoking the court’s supervisory author-
ity. Id., 534. Coleman, accordingly, presented a radical
departure from the principles espoused in Ubaldi and
adhered to carefully in Jones—without even indicating
any awareness that the court was departing from any-
thing at all. What makes the majority’s exercise of the
court’s supervisory power even more astonishing is that
the concurrence in Coleman expressly stated that the
court’s supervisory authority should be reserved ‘‘for
addressing serious concerns that affect the integrity of
the defendant’s trial in particular and the perceived
fairness of the judicial system as a whole.’’ Id., 550
(Norcott, J., concurring).
Subsequent decisions applying new rules to pending
appeals pursuant to our supervisory authority have
seemed to follow Coleman more than Ubaldi and Jones.
One example is State v. Santiago, supra, 245 Conn.
331–32, in which the court concluded that the trial court
did not abuse its discretion in finding that allegations
of a juror’s racial bias lacked credibility, following a
preliminary inquiry into the allegations as required by
State v. Brown, 235 Conn. 502, 530–31, 668 A.2d 1288
(1995). Notwithstanding that conclusion, the court
relied on its supervisory authority to reverse the judg-
ment of the trial court, and to announce a rule requiring
that, when there have been allegations that a juror has
made racial epithets, the trial court must conduct a
more extensive inquiry than required by State v. Brown,
supra, 530–31. State v. Santiago, supra, 340.
Although the court properly placed great emphasis
on the importance of the issue implicated by the appeal,
the court did not claim, and indeed it could not, that
extraordinary circumstances justified reversal. The trial
court expressly had found that the witness who had
alleged the misconduct was biased—prior to making
her allegations, she had sent the court a letter indicating
that she regretted her vote to convict the defendant
and questioned his guilt, and also opined that, even if
he was guilty, his act of killing a drug dealer had saved
many from ‘‘ ‘the heartbreak of drug abuse . . . .’ ’’ Id.,
324 n.14. There were also serious inconsistencies in
her allegations, and when questioned by the trial court
during the Brown inquiry, she was not able to offer any
explanation for those inconsistencies. Id., 326–27 n.16.
By apparently second-guessing the trial court’s credibil-
ity finding, the majority in Santiago seemingly usurped
the properly exercised discretion of the court and sub-
stituted its own judgment. The concurring and dis-
senting opinion accurately characterized the court’s
exercise of supervisory authority in the case to be irrec-
oncilable with the ‘‘long settled distinction between
the unique roles of appellate and trial courts.’’ Id., 342
(Callahan, C. J., concurring in part and dissenting in
part).
Another, more recent example follows the Coleman
model quite closely. In State v. Polanco, 308 Conn. 242,
248, 61 A.3d 1084 (2013), the court stated that it did
not need to reach the constitutional claim because the
appeal could be resolved by invoking the court’s super-
visory authority. What is particularly troubling about
the exercise of supervisory authority in Polanco is the
suggestion by the court that it was not resolving the
claim on the constitutional issue raised by the defendant
because doing so would have been difficult. Specifi-
cally, in justifying its reliance on its supervisory author-
ity, the court stated: ‘‘We find Rutledge [v. United States,
517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996)]
to be less than a model of clarity as to what extent its
holding was constitutionally based rather than jurispru-
dentially based or a matter of statutory construction.’’
State v. Polanco, supra, 256. A fair reading of Polanco
is that the court exercised its supervisory authority in
order to avoid deciding a tricky issue.
The last case that I discuss in this part is State v.
Elson, supra, 311 Conn. 726. I recognize that I partici-
pated in the panel in Elson, and I joined the unanimous
decision. I have reconsidered, and now believe that the
court improperly exercised its supervisory authority in
that case to reverse the judgment of the Appellate Court
with respect to the defendant’s sentencing. In doing
so, this court substituted its judgment for the properly
exercised discretion of the trial court. Elson involved
the trial court’s remarks, during the defendant’s sen-
tencing hearing, that: ‘‘We’ve all heard the defendant’s
apology. I don’t know how sincere it is, but it is certainly
unfortunate that it comes so late in the process. If the
defendant had been truly apologetic, he wouldn’t have
put the victim through the trial. To a large extent, it
seems to me that the defendant’s apology represents
thinking of himself rather than the victim.’’ (Emphasis
omitted; internal quotation marks omitted.) Id., 733.
The court in Elson concluded that the defendant had
failed to demonstrate that, viewed in the totality of the
circumstances, the trial judge’s remark demonstrated
that the judge had augmented the defendant’s sentence
in retaliation for the exercise of his right to trial. Id., 762.
The record demonstrated that the trial court considered
many factors in sentencing the defendant, including the
severity of the assault that gave rise to the defendant’s
conviction, the probation report’s recommendation of
a lengthy term of incarceration, the defendant’s lack of
truthfulness, and the fact that the attack was part of a
pattern of behavior that justified the court’s conclusion
that the defendant was a dangerous person from whom
the victim and society deserved protection. Id., 761–62.
Despite acknowledging all of this, and also conclud-
ing that the trial court considered the defendant’s
expression of remorse relevant only to whether the
defendant was entitled to leniency; id., 762; the court in
Elson issued a prophylactic rule precluding trial courts
from commenting negatively on the defendant’s elec-
tion to proceed to trial during sentencing; id., 777; and
remanded the case for a new sentencing hearing, con-
cluding that the trial court’s remarks ‘‘created an
appearance of impropriety . . . .’’ Id., 784. Certainly,
if one ignored the context of the remarks, and evaluated
them in isolation, the remarks might have that effect.
But we have specifically rejected a test that would eval-
uate a trial court’s sentencing remarks in isolation,
instead adopting the totality of the circumstances test.
State v. Kelly, 256 Conn. 23, 82–83, 770 A.2d 908 (2001).
Viewed in the totality of the circumstances, therefore,
the remarks do not create the appearance of impropri-
ety at all. One is left with the impression that the court
in Elson was motivated to use its supervisory authority
to accomplish what the law precluded, merely because
the trial court’s awkwardly worded comment, if viewed
in isolation, could be misconstrued to mean that the
court was penalizing the defendant for exercising his
right to a jury trial. It is difficult to see how the theoreti-
cal possibility that a trial judge’s sentencing remarks,
if construed in a manner that is expressly prohibited
by our law, could give rise to the conclusion that the
court violated a defendant’s rights, justifies the invoca-
tion of this court’s supervisory authority.
The progression in our decisions that have exercised
the court’s supervisory authority to apply a newly
announced rule to the case on appeal is therefore clear.
The court has consistently and steadily moved toward
more extreme exercises of the power, and has aban-
doned the guidelines enunciated in Ubaldi. As I will
explain in part II of this concurring and dissenting opin-
ion, the present case fits this pattern precisely.
Our decisions that have announced new rules pro-
spectively follow a somewhat similar pattern. The court
first relied on its supervisory power to impose a new
rule on the trial courts in State v. Holloway, 209 Conn.
636, 645–46, 553 A.2d 166, cert. denied, 490 U.S. 1071,
109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989), a case in which
the defendant claimed that the state had excluded a
potential juror on the basis of race in violation of Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986). The court restricted its exercise of supervisory
authority to announcing the new rule prospectively,
resolving the merits of the appeal on constitutional
principles. Specifically, the court affirmed the defen-
dant’s conviction on the basis of its conclusion that he
had failed to establish that the state’s use of a peremp-
tory challenge was racially motivated. State v. Hol-
loway, supra, 644–45. After resolving the merits,
however, the court stated that it was appropriate to
use its supervisory authority to announce a new rule
for future cases because the issue of purposeful racial
discrimination ‘‘is a matter 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.’’
(Emphasis added; internal quotation marks omitted.)
Id., 645. Put another way, the court stated, the invoca-
tion of its authority was justified because ‘‘this issue
is of such vital importance to our real and perceived
adherence to the rule of law . . . .’’ Id. Going forward,
the court stated, when a defendant claimed pursuant
to Batson v. Kentucky, supra, 476 U.S. 79, that the
state’s exercise of a peremptory challenge to exclude
a potential juror was based on purposeful racial discrim-
ination, the state would be obligated to provide a race
neutral explanation for the challenge without the
requirement that the defendant make the prima facie
showing required pursuant to Batson. State v. Hol-
loway, supra, 645–46 and 646 n.4.
The decision in Holloway did not rest the court’s
exercise of supervisory authority on any exceptional
circumstances presented in the case. Nor could the
court have done so, given the different use it made of
its authority in Holloway. That is, because the court
deemed its authority appropriately limited to announc-
ing a prospective rule, it could not justify the exercise
of supervisory authority on the exceptional circum-
stances of the case—if the circumstances were that
exceptional, the court would have relied on its authority
to reverse the judgment. Nor did the court offer any
explanation as to why the rule that it announced in
Holloway was necessary in order to ensure the per-
ceived fairness of the judicial system, or why it was
necessary to announce the rule by way of adjudication
rather than allowing the proposed rule to go to the
Rules Committee of the Superior Court, a process that
would have ensured transparency and allowed the par-
ticipation of stakeholders and the public.
The court’s entire focus in Holloway was on the
importance of the interest involved—the prevention of
purposeful racial discrimination in seating a jury for a
criminal trial—to the integrity of the judicial system. In
fact, without expressly stating so, Holloway established
slightly different parameters for the court’s exercise of
supervisory authority to announce a rule prospectively.
That is, the relevant inquiry when the court determines
whether to announce a new rule is whether the issue
is of vital importance to the perception that the judicial
system is fair. It makes sense to apply a different stan-
dard when determining whether to announce a rule
prospectively—inquiries regarding exceptional circum-
stances presented in the case at issue are not particu-
larly helpful in determining whether to apply a new
rule going forward. A focus on the nature of the issue
implicated by the proposed rule, and its importance to
the integrity of the judicial system, is more appropriate.
A fair question to ask, however, is whether that broad
guideline is sufficient to assist the court in exercising
any restraint in using its supervisory power to announce
new rules. Every criminal trial involves issues that are
central to the perceived fairness of the judicial system—
does this mean that the court is free to announce a new
rule restricting the discretion of trial judges in criminal
trials whenever the court believes that it would be a
‘‘good idea’’ to do so?
The court’s next exercise of its supervisory authority
provides a helpful additional guiding principle for the
invocation of the court’s supervisory power. In State v.
Patterson, 230 Conn. 385, 645 A.2d 535 (1994), the court
first resolved the merits of the appeal under the applica-
ble constitutional and legal principles. The court con-
cluded that the defendant had waived his claim that
the trial judge had improperly been absent during voir
dire. Id., 396–97. The court then stated that it would
exercise its supervisory authority to require trial judges
‘‘to remain on the bench throughout the voir dire of a
criminal trial.’’ Id., 397. The court began its explanation
as to why supervisory authority was appropriate in the
case by emphasizing generally the high stakes at issue
in a criminal trial. Id., 398. The court also explained the
centrality of its new rule to safeguarding the interests
implicated by the important issue: ‘‘The uninterrupted
supervision of the proceedings by the judicial authority,
mindful of everything that transpires in the courtroom,
is an important part of the appearance that justice is
being done in a criminal case.’’ Id. Finally, although,
like Holloway, the court engaged in no discussion of
the necessity of resorting to the court’s supervisory
authority, it did weigh the various interests involved,
and ultimately determined that the balance favored the
exercise of the authority. Id., 400.
Patterson provides helpful guidance for the appro-
priate exercise of our supervisory authority to
announce a new rule prospectively. In subsequent deci-
sions, if the court had followed Patterson as a model,
it would have limited its invocation of supervisory
authority to announce a prophylactic rule to those
instances when the proposed rule was central to safe-
guarding the interests implicated by an issue of vital
importance to the perceived fairness of the judicial
system, after considering any countervailing interests
and concluding that the balance weighed in favor of
exercising the court’s authority.
Because this court’s decisions routinely announce
rules prospectively pursuant to our supervisory author-
ity with little or no explanation as to why reliance on
the power is appropriate, there is no evidence that the
court has followed the principles adhered to in Pat-
terson, or that it was aware of any need to apply princi-
ples consistently when invoking its supervisory power
to announce a new rule. For example, within one month
after the decision in Patterson was issued, the court’s
decision in Bennett v. Automobile Ins. Co. of Hartford,
230 Conn. 795, 646 A.2d 806 (1994), did not discuss any
limits on the exercise of the power. In Bennett, in the
context of an uninsured motorist claim appeal that chal-
lenged the trial court’s order of remittitur, this court
relied on its supervisory authority to announce a pro-
spective rule requiring insurers to ‘‘raise issues of policy
limitation, even when undisputed, by special defense.’’
Id., 806. The opinion offered no justification whatsoever
for the reliance on the authority, merely stating vaguely
that it exercised its authority ‘‘[i]n view of the issues
raised by this appeal . . . .’’ Id.
The court’s subsequent decisions announcing new
rules that apply prospectively have taken a path that
is largely rudderless, so lacking in direction that it is
difficult to characterize them with any conciseness. In
some cases, the court has adhered to the principle that
our power to announce prospective rules should be
reserved for issues that are of vital importance to the
perceived fairness of the judicial system. See, e.g., State
v. Brown, supra, 235 Conn. 525–28 (requiring trial courts
to conduct preliminary inquiry into facially credible
allegations of juror misconduct in criminal case, and
justifying invocation of supervisory power on impor-
tance of right to trial by jury in criminal case and respon-
sibility of trial judge to ensure that criminal defendant
receives fair trial).11 In other instances, the court
appears to have relied on the ‘‘disturbing’’ facts of the
particular case to announce the prophylactic rule. See,
e.g., State v. Ouellette, 295 Conn. 173, 189–92, 989 A.2d
1048 (2010) (relying on ‘‘disturbing’’ discrepancies
between state’s representations at trial regarding deal
offered to state’s witness and state’s conduct during
witness’ sentencing hearing, to invoke supervisory
authority to require sentencing courts to inquire regard-
ing nature of plea agreements when state attests to
cooperation, and representations made about
agreements during trials at which witness testified).
Many decisions have offered no explanation as to
why it is appropriate to rely on the court’s supervisory
authority. See, e.g., Saleh v. Ribeiro Trucking, LLC, 303
Conn. 276, 283, 32 A.3d 318 (2011) (relying on supervi-
sory authority to require trial judges to expressly set
forth in memorandum of decision ‘‘clear, definite and
satisfactory’’ reasons to justify remittitur [internal quo-
tation marks omitted]). Other decisions have vaguely
alluded to broad principles, without providing a more
specific explanation as to why it was appropriate to
invoke our supervisory power in the given context. See,
e.g., Duperry v. Solnit, 261 Conn. 309, 326, 329, 803 A.2d
287 (2002) (requiring trial court to canvass defendant,
when defendant has entered plea of not guilty by reason
of mental disease or defect and state agrees with defen-
dant’s claim, explaining that invocation of supervisory
power is ‘‘appropriate, in light of concerns of fundamen-
tal fairness’’).
Among the decisions that have announced new rules,
those that have announced prospective changes to jury
instructions appear to form a particular subset, in which
the court routinely and consistently has required little
to no justification for the exercise of supervisory
authority. See, e.g., State v. Aponte, 259 Conn. 512, 522,
790 A.2d 457 (2002) (directing trial courts ‘‘to refrain
from instructing jurors that one who uses a deadly
weapon on the vital part of another will be deemed to
have intended the probable result of that act and that
from such a circumstance the intent to kill properly
may be inferred’’ [internal quotation marks omitted]);
State v. Griffin, 253 Conn. 195, 205, 209–10, 749 A.2d
1192 (2000) (barring use of charge providing that, ‘‘[i]f
two conclusions can reasonably be drawn from the
evidence, one of innocence and one of guilt, you must
adopt the one of innocence’’). Although one certainly
can imagine reasons why a lower barrier may be appro-
priate in this context, the court has never offered any
indication that it has intentionally adhered to a different
standard when announcing rules governing jury
instructions.
Only recently, in State v. Carrion, 313 Conn. 823, 100
A.3d 361 (2014), the court expressly articulated a new
standard for the invocation of our supervisory authority
to announce new rules. According to the decision in
Carrion, the only requirement is that the court deem
such exercise of its authority to be ‘‘appropriate’’ or,
in other words, dictated by ‘‘prudence and good sense
. . . .’’ Id., 852. The court specifically rejected the sug-
gestion that supervisory authority may be used to
announce a new rule only when its use is rendered
‘‘necessary.’’ Id., 851. Additionally, the court stated that
in this context, ‘‘there is no need for this court to justify
the use of extraordinary measures prior to exercising
its supervisory authority.’’ Id., 852. As support, the court
looked primarily to decisions in which we have
announced prospective changes to jury instructions.
Id., 852–53. As I already have explained, however, those
decisions are not representative of the entirety of this
court’s decisions announcing new rules prospectively.
The standard announced in Carrion, if followed by the
court, would further threaten the predictability that is
essential to the rule of law, because it sets the bar too
low. When we first invoked our supervisory authority
in Ubaldi, we made it clear that the power should be
used in the rare instance. If we rely on mere prudence
and good sense as the trigger, we have abandoned the
guidelines that we set for ourselves thirty years ago.
The history of the court’s exercise of supervisory
authority, both in announcing new rules to be applied
prospectively and in announcing new rules to be applied
to the pending appeal, demonstrates that the court has
not engaged in any meaningful consideration of what
the appropriate guidelines governing our exercise of
that power should be. The result is the current explo-
sion of decisions by this court invoking the exercise of
its supervisory authority, without any consensus as to
appropriate guidelines for restraint. The history of this
court’s decisions that invoked its supervisory authority
supports the conclusion that this court should be guided
in its exercise of that authority by State v. Patterson,
supra, 230 Conn. 397–400, and State v. Ubaldi, supra,
190 Conn. 572–73. That is, the court should announce
new rules with prospective application only when the
proposed rule is central to safeguarding the interests
implicated by an issue of vital importance to the per-
ceived fairness of the judicial system, after considering
any countervailing interests and concluding that the
balance weighed in favor of exercising the court’s
authority. State v. Patterson, supra, 397–400. As for the
application of new rules to pending appeals, the court
should apply a newly announced rule to the pending
appeal only when its exercise is necessary because
traditional protections are inadequate, when the inter-
ests involved are of the utmost importance to the per-
ceived fairness of the judicial system as a whole, when
retroactive application of the rule is justified by excep-
tional circumstances presented in the pending case, and
an evaluation of the interests involved reveals that the
balance weighs in favor of invoking the authority. State
v. Ubaldi, supra, 572–73.
II
APPLICATION TO THE PRESENT CASE
Applying the standard established in State v. Ubaldi,
supra, 190 Conn. 572–73, to the present case leads to
the conclusion that this court should decline to exercise
its supervisory authority. Although the interests
involved are of the utmost importance, there are no
exceptional circumstances in the present case, and tra-
ditional protections were adequate to safeguard the
respondent’s rights. Additionally, the countervailing
interests involved in the present case are powerful—
the interest that the children have in a permanent place-
ment without any additional delay counsels against
invocation of the court’s supervisory authority. Accord-
ingly, the exercise of that authority in the present case
is inappropriate.
It is significant that in the present case the majority’s
unequivocal conclusion, that the respondent’s right to
due process was not violated by the trial court’s failure
to personally canvass her before taking the case on the
papers, is grounded on a logical, objective constitu-
tional analysis. The majority properly weighs the three
factors set forth in Mathews v. Eldridge, 424 U.S. 319,
335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), and concludes
that due process does not require the trial court to
conduct a personal canvass prior to accepting a parent’s
waiver of the right to present evidence and testimony
in opposition to a termination petition, and to object to
the admission of exhibits in support of the termination
petition. The United States Supreme Court crafted the
three-pronged Mathews test in light of its recognition
that ‘‘due process is flexible and calls for such proce-
dural protections as the particular situation demands.’’
(Internal quotation marks omitted.) Id., 334. Accord-
ingly, the court’s test was formulated to allow courts
to consider the particular circumstances presented in
a case in determining the process that is constitutionally
due under those circumstances. The rule is designed to
adapt to individual circumstances. The three Mathews
factors are: ‘‘First, the private interest that will be
affected by the official action; second, the risk of an
erroneous deprivation of such interest through the pro-
cedures used, and the probable value, if any, of addi-
tional or substitute procedural safeguards; and finally,
the [g]overnment’s interest, including the function
involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement
would entail.’’ Id., 335.
The record in the present case reveals that the major-
ity properly evaluated the three Mathews factors in
reaching its conclusion that the respondent received
all of the process that was constitutionally due to her.
The process afforded to the respondent in the present
case ensured that, when she waived her right to proceed
to trial and to contest the exhibits presented by the
petitioner, she did so knowingly, intelligently and volun-
tarily. In fact, that decision is perfectly consistent with
the strategy employed throughout the extensive and
lengthy course of proceedings provided to the respon-
dent. Additionally, beside the lack of any allegation that
her counsel was ineffective, there is no indication in
the record that at any point in time the respondent
experienced any difficulty communicating with counsel
or expressed any dissatisfaction with her represen-
tation.
The majority accurately describes the importance of
the private interest at issue in the present case. This
court has recognized that parents have a fundamental
right to rear their children. Roth v. Weston, 259 Conn.
202, 213, 789 A.2d 431 (2002). The United States
Supreme Court has stated that ‘‘[a] parent’s interest in
the accuracy and justice of the decision to terminate
his or her parental status is, therefore, a commanding
one.’’ Lassiter v. Dept. of Social Services, 452 U.S. 18,
27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). That court
has emphasized that even when familial ‘‘relationships
are strained,’’ the importance of the parents’ fundamen-
tal right to raise their children is not diminished: ‘‘If
anything, persons faced with forced dissolution of their
parental rights have a more critical need for procedural
protections than do those resisting state intervention
into ongoing family affairs. When the [s]tate moves to
destroy weakened familial bonds, it must provide the
parents with fundamentally fair procedures.’’ Santosky
v. Kramer, 455 U.S. 745, 753–54, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982).
Although I agree with the majority that the second
Mathews factor, which requires the court to consider
‘‘the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards’’;
Mathews v. Eldridge, supra, 424 U.S. 335; favors the
petitioner, I observe that the majority only generally
identifies the current procedural protections in place.
Because I believe that the extensive nature of the
existing procedural protections available to a parent
during the termination process is relevant to the ques-
tion of whether it is necessary in the present case to
exercise our supervisory authority, I discuss those
existing protections in greater detail than does the
majority.
As happens in the vast majority of termination cases,
the route that the present case followed prior to the
termination of the respondent’s parental rights was not
a quick one. Along the way, the respondent participated
in numerous proceedings designed to achieve a balance
between the respondent’s fundamental right to parent
her children and society’s duty to protect the best inter-
ests of children. It is significant that the two years
during which the respondent was involved in the pro-
ceedings to determine whether she would retain her
right to parent her two children did not mark the first
time that she traveled this route. In 2007, with her con-
sent, her parental rights with respect to her older three
children already had been terminated. Those children
subsequently were adopted by the their maternal
great-grandmother.
The record reflects that on September 21, 2011, the
petitioner invoked a ninety-six hour hold on behalf of
the children, Yasiel R. and Sky R., and removed them
from the respondent’s care, on the basis of a petition
of neglect. See General Statutes § 17a-101g (e) and (f).
Immediately upon the removal of the children from
the respondent’s custody, the procedures designed to
protect her rights were triggered. On the day that the
children were removed, Rosiris Espejo, the social
worker for the department who was assigned to the
case, provided the respondent with a copy of the peti-
tioner’s ninety-six hour hold. Espejo attempted to dis-
cuss other relative resources with whom the children
could be placed, but the respondent refused to speak
to her.
On September 23, 2011, the respondent was served
with copies of the notice of temporary custody and
order to appear, the petitioner’s motion seeking an ex
parte order of temporary custody pursuant to § 17a-
101g (e) and (f) (ninety-six hour hold), Espejo’s support-
ing affidavit, the neglect petition and the summary of
facts substantiating the neglect petition, and specific
steps. The notice of temporary custody and order to
appear informed the respondent of the basis for the
children’s removal, and notified her of the date of the
preliminary hearing on the neglect petition and motion
for temporary custody. The notice also informed the
respondent that she would have the opportunity to pre-
sent her position to the court, that she had the right to
remain silent, and the right to counsel, which would be
appointed for her if she could not afford an attorney.
The neglect petition represented that the children
were neglected on the basis that they were ‘‘being
denied proper care and attention, physically, education-
ally, emotionally or morally,’’ and that they were being
‘‘permitted to live under conditions, circumstances or
associations injurious to their well-being.’’ The petition
informed the respondent that a hearing would be held
on the petition, and it provided a date, time and place
of the hearing. It also informed the respondent that if
she failed to appear, the court could find the children
neglected, uncared-for or abused. The preliminary spe-
cific steps provided to the respondent in order for her
to regain custody of the children required her to keep
all appointments set by or with the department, to suc-
cessfully complete a parenting program, to accept in-
home services referred by the department and to coop-
erate with the service providers, to submit to a sub-
stance abuse evaluation and follow recommended
treatment, to submit to random drug testing, to refrain
from using illegal drugs or abusing alcohol or medicine,
to cooperate with court-ordered evaluations or testing,
to sign releases allowing the department to communi-
cate with service providers and with the children’s attor-
ney or guardian ad litem, to obtain or maintain adequate
housing and a legal income, to notify the department
of changes in the make-up of the household, to not
become involved with the criminal justice system, and
to take care of the children’s physical, educational, med-
ical or emotional needs. The specific steps provided
for the respondent to have supervised visitation with
the children.
On September 27, 2011, the court held a hearing to
determine whether to order temporary custody to the
petitioner. At that hearing, the court appointed counsel
for the respondent. The court found that the respondent
had been served with notice of the petition of neglect,
and had been advised of her rights. The court canvassed
the respondent, who agreed to sustain the order com-
mitting the children to the temporary custody of the
petitioner, and indicated that she wished to participate
in the Recovery Specialist Voluntary Program, a pro-
gram for parents for whom substance abuse is identified
as one of the factors in the removal of their children.
The court issued an order granting temporary custody
to the petitioner and allowing the respondent super-
vised visitation.
The hearing on the petition for neglect took place on
February 8, 2012, at which time the respondent, who
was represented by counsel, entered a plea of nolo
contendere. In her plea, the respondent alleged that the
neglect petition had been read to her and that she had
been advised of her rights, including her rights to a
trial, to an attorney, and to disagree with any claims
in the petition. She further stated that she voluntarily
exercised her right not to contest the claims in the
petition, and elected to exercise her right to remain
silent without any admission of responsibility under the
petition as to its allegation that the children had been
permitted by the respondent to live under conditions,
circumstances or associations injurious to their well-
being. The court accepted the respondent’s plea and
the children were adjudicated neglected and committed
to the custody and care of the petitioner. At that time,
the court provided specific steps to the respondent that
were substantially similar to the initial specific steps
that had been provided to her on September 23, 2011.
An additional specific step provided to the respondent
was that she was required to take part in individual
counseling with Generations Behavioral Health. The
court also ordered the petitioner to file a motion for
review of a permanency plan.
On June 6, 2012, the petitioner filed a motion to
review the permanency plan, which had a stated goal
of the termination of the parental rights of both the
respondent and the father, and the adoption of the chil-
dren. The respondent did not file an objection to the
motion,12 and did not oppose it at the hearing on the
motion on September 5, 2012. At that hearing, the court
approved the permanency plan goal of termination of
parental rights and adoption.
On November 21, 2012, the petitioner filed this peti-
tion for termination of the respondent’s parental rights,
and, on May 23, 2013, filed another motion to review
the permanency plan, which was again approved by the
court. The respondent filed an objection to the perma-
nency plan on June 19, 2013, claiming that she was
complying with the specific steps ordered by the court,
and arguing that termination of her parental rights was
not in the best interests of the children. She subse-
quently withdrew her objection, and moved for an indi-
vidual psychological evaluation, which request was
approved by the court.
The hearing on the petitioner’s motion for termina-
tion of parental rights was set for November 12, 2013.
The original summons that was sent to the respondent
for the hearing on the termination of parental rights
explained the effect of a termination decree: ‘‘The termi-
nation decree will be the complete end of the legal
relationship between the child . . . and the person(s)
whose parental rights have been terminated so that the
child . . . is free for adoption . . . . The parent will
have no legal right or responsibility to care for the child
. . . or make any decisions on behalf of the child . . .
to obtain the child’s . . . birth certificate or any state
or federal benefit. The parent will have no legal respon-
sibility to support or to pay for the child’s . . .
expenses after the effective date of the termination.
The child . . . will be legally free for adoption after
the termination and the parent will have no right to
notice of the adoption proceedings nor any right to
participate in the proceedings.’’
The extensive process provided to the respondent
demonstrates that she was notified of her rights at every
opportunity, and given every protection under the law.
Given the repeated notice provided to the respondent of
the effect of a judgment of termination, the respondent’s
active participation in the proceedings, and the fact
that she was represented by counsel, I agree with the
majority that the record does not demonstrate that the
existing procedures create a risk of an erroneous depri-
vation of parental rights. Additionally, because the
record demonstrates that the respondent was repeat-
edly advised of her rights, it would be unreasonable to
conclude that a personal canvass by the trial court likely
would have reduced the risk of erroneous deprivation
of her rights. The second factor of the Mathews test
is determinative in the present case—the respondent
received the process that she was due.13 See Mathews
v. Eldridge, supra, 424 U.S. 335.
Applying the guidelines that this court established in
State v. Ubaldi, supra, 190 Conn. 572–73, I conclude
that the only factor supporting the exercise of our super-
visory authority is that the issue involved is an
important one. None of the remaining factors, however,
support the invocation of the court’s supervisory
authority. Under these facts, it is not surprising that
the majority fails to rest its decision to exercise its
supervisory authority to reverse the Appellate Court’s
judgment on any extraordinary circumstances pre-
sented in the case—there are none. There is no indica-
tion that the respondent was deprived of her rights, or
that the termination of her parental rights involved any
fundamental unfairness. There is also no indication that
it is in any way necessary to resort to the court’s supervi-
sory authority. In fact, the record suggests precisely the
opposite. Traditional remedies provided the respondent
with adequate protection. It is also quite telling that the
majority fails to give any consideration to the counter-
vailing interests in the present case, which are particu-
larly compelling and counsel against reversing the
judgment. The interest of the children in being perma-
nently placed without additional delay clearly out-
weighs the majority’s theoretical concerns regarding
fairness to the respondent. Viewed under the guidelines
that this court first set forth in Ubaldi, this appeal pre-
sents a particularly inappropriate circumstance in
which to exercise the court’s authority to reverse the
judgment.
Finally, even if the majority had restricted its supervi-
sory authority to an announcement of a new prospective
rule, that exercise of authority would still be improper
under the circumstances of this case. As I explained
earlier in this concurring and dissenting opinion, the
court should exercise its supervisory authority to
announce a new rule only when the proposed rule is
central to safeguarding the interests implicated by an
issue of vital importance to the perceived fairness of
the judicial system, after considering any countervailing
interests and concluding that the balance weighed in
favor of exercising the court’s authority. See State v.
Patterson, supra, 230 Conn. 385. Although the issue is
important, there is no indication that the majority’s
proposed rule is central to safeguarding the interests
implicated by the issue or that the exercise is appro-
priate when weighed against countervailing interests.
Specifically, there has been no showing that parents
who are represented by counsel in termination proceed-
ings are likely to unknowingly, unintelligently or invol-
untarily waive their right to trial or their right to contest
exhibits offered by the department in favor of termina-
tion. As the present case demonstrates, the proceedings
available to parents are designed to protect their right
to retain custody of their children and to inform them
of the services and proceedings available to them to
enable them to do so. Without some indication in the
record of conflict, lack of communication or dissatisfac-
tion with the representation provided by counsel to
parents in termination proceedings, there is simply no
need for a personal canvass. The issue of whether to
require a canvass properly should have been left to the
Rules Committee of the Superior Court. The majority’s
rule, therefore, is unnecessary, and improperly substi-
tutes its judgment for the discretion of trial judges.
Although I concur with and join parts I and II of the
majority opinion, for the foregoing reasons, I respect-
fully dissent from part III of that opinion.
1
Although the Commissioner of Children and Families filed separate peti-
tions and certain other supporting documents discussed herein on behalf
of each of the two children who are the subject of this appeal, Yasiel R.
and Sky R., and, in some instances, certain affidavits were made and studies
conducted in the name of both children, for purposes of clarity, we refer
to these documents in the singular.
2
It is instructive to observe what the court in Ubaldi did not rely on to
justify its newly recognized power. That is, the court did not rely on Practice
Book § 60-2, formerly Practice Book (1978–97) § 4183, to justify its claim
to possess ‘‘inherent supervisory power.’’ See Practice Book § 60-2 (‘‘[t]he
supervision and control of the proceedings on appeal shall be in the court
having appellate jurisdiction’’). By not looking to the authority of the court
to supervise the appellate process to justify the power it invoked in Ubaldi,
the court drew a distinction between the two types of authority—the author-
ity to supervise the proceedings before this court on appeal pursuant to the
rules of practice, and the authority to supervise the proceedings at the lower
courts, pursuant to Ubaldi. The derivation of our supervisory power in
Ubaldi, therefore, is distinct in origin from the court’s authority pursuant
to the rules of practice.
I observe that our decisions have not always been clear, when invoking
this court’s supervisory authority, whether that authority is grounded in the
rules of practice, or derived from this court’s decision in Ubaldi, and instead
have conflated the two types of authority. See, e.g., In re Jonathan M., 255
Conn. 208, 236, 764 A.2d 739 (2001) (declining request that court exercise
supervisory authority to remand case for further evidentiary hearings and
to retain jurisdiction of appeal, which request implicated court’s authority
under Practice Book § 60-2; rather than citing to rules of practice, court
cited as authority State v. Andrews, 248 Conn. 1, 20, 726 A.2d 104 [1999],
which involved denial of request to exercise of supervisory authority to
reverse conviction on basis of prosecutorial improprieties).
3
As a possible explanation for the court’s evolution in its understanding
of its role, Beale offers the observation that McNabb was decided three
years after legislation authorized the Supreme Court to promulgate rules of
criminal procedure and two years after the court decided Sibbach v. Wilson &
Co., 312 U.S. 1, 14–16, 61 S. Ct. 422, 85 L. Ed. 479 (1941), which upheld the
validity of rules 35 and 37 of the recently promulgated Federal Rules of
Civil Procedure. A. Beale, supra, 84 Colum. L. Rev. 1444–45 and 1445 nn.74
and 75.
4
For an excellent discussion of the lack of statutory and constitutional
underpinnings for the ‘‘inherent supervisory authority’’ of the Supreme Court,
see A. Barrett, supra, 106 Colum. L. Rev. 344–52. Barrett reviews several
theories of constitutional sources of supervisory authority, and explains
why each is inconsistent with the historical context at the time that the
constitution was ratified.
5
Providing a definitive number of decisions in which we have invoked
our supervisory power is complicated by several factors. Sometimes, for
example, the majority decision has not expressly invoked the court’s supervi-
sory power, but a dissenting opinion nonetheless claims that the majority
relied on it. See, e.g., State v. Couture, 194 Conn. 530, 568, 482 A.2d 300
(1984) (Healey, J., dissenting), cert. denied, 469 U.S. 1192, 105 S. Ct. 967,
83 L. Ed. 2d 971 (1985). In other instances, a subsequent decision character-
izes an earlier holding as having implicitly rested on the court’s supervisory
authority. See, e.g., State v. Elson, supra, 311 Conn. 771 n.31 (characterizing
decision in State v. Cohane, 193 Conn. 474, 499–500, 479 A.2d 763, cert.
denied, 464 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 [1984], as exercise
of supervisory authority, despite fact that Cohane purported to discuss
supervisory authority only in dicta); Tanzman v. Meurer, 309 Conn. 105,
116, 70 A.3d 13 (2013) (characterizing decision in Krafick v. Krafick, 234
Conn. 783, 804, 663 A.2d 365 [1995], as invocation of court’s supervisory
authority). Additionally, as I explain in footnote 2 of this concurring and
dissenting opinion, this court increasingly has conflated its supervisory
authority over the appellate process pursuant to Practice Book § 60-2 with
the supervisory authority over the lower courts that it announced in Ubaldi. I
have not included, in my summary of this court’s invocation of its supervisory
authority, the decisions in which the court invoked its supervisory authority
over the appellate proceedings. I observe, however, that the line between
the two types of authority is not always clear. For example, it could be argued
that exercises of supervisory authority pursuant to Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn.
123, pertain to this court’s supervision over the appellate proceedings, and,
therefore, could be characterized as an exercise of authority pursuant to
§ 60-2. My view, however, is that, although reviewing issues pursuant to
Blumberg Associates Worldwide, Inc., pertains to this court’s supervision
of the appellate proceedings, the exercise of authority goes beyond that
which is contemplated by the rules of practice, and, therefore, I treat those
decisions as an exercise of this court’s supervisory authority announced in
State v. Ubaldi, supra, 190 Conn. 570.
See State v. Holloway, 209 Conn. 636, 645–46, 553 A.2d 166, cert. denied,
490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Smith, 207
Conn. 152, 162, 540 A.2d 679 (1988); State v. Chung, 202 Conn. 39, 44, 519
A.2d 1175 (1987); State v. Ubaldi, supra, 190 Conn. 570.
See State v. Delvalle, 250 Conn. 466, 475–76, 736 A.2d 125 (1999); State
v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466 (1998), cert. denied, 528 U.S.
862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999); Ireland v. Ireland, 246 Conn.
413, 420–21, 717 A.2d 676 (1998); State v. Santiago, supra, 245 Conn. 301;
State v. Coleman, 242 Conn. 523, 534, 700 A.2d 14 (1997); State v. Gould,
241 Conn. 1, 9, 695 A.2d 1022 (1997); State v. Taylor, 239 Conn. 481, 504,
687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed.
2d 1017 (1997); State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995);
State v. Breton, 235 Conn. 206, 250, 663 A.2d 1026 (1995); State v. Jones,
234 Conn. 324, 346–47, 662 A.2d 1199 (1995); State v. Garcia, 233 Conn. 44,
91, 658 A.2d 947 (1995); Kaufman v. Zoning Commission, 232 Conn. 122,
149, 653 A.2d 798 (1995); Bennett v. Automobile Ins. Co. of Hartford, 230
Conn. 795, 806, 646 A.2d 806 (1994); State v. Patterson, 230 Conn. 385, 390,
397–98, 400, 645 A.2d 535 (1994).
6
See State v. Holloway, 209 Conn. 636, 645–46, 553 A.2d 166, cert. denied,
490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Smith, 207
Conn. 152, 162, 540 A.2d 679 (1988); State v. Chung, 202 Conn. 39, 44, 519
A.2d 1175 (1987); State v. Ubaldi, supra, 190 Conn. 570.
7
See State v. Delvalle, 250 Conn. 466, 475–76, 736 A.2d 125 (1999); State
v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466 (1998), cert. denied, 528 U.S.
862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999); Ireland v. Ireland, 246 Conn.
413, 420–21, 717 A.2d 676 (1998); State v. Santiago, supra, 245 Conn. 301;
State v. Coleman, 242 Conn. 523, 534, 700 A.2d 14 (1997); State v. Gould,
241 Conn. 1, 9, 695 A.2d 1022 (1997); State v. Taylor, 239 Conn. 481, 504,
687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed.
2d 1017 (1997); State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995);
State v. Breton, 235 Conn. 206, 250, 663 A.2d 1026 (1995); State v. Jones,
234 Conn. 324, 346–47, 662 A.2d 1199 (1995); State v. Garcia, 233 Conn. 44,
91, 658 A.2d 947 (1995); Kaufman v. Zoning Commission, 232 Conn. 122,
149, 653 A.2d 798 (1995); Bennett v. Automobile Ins. Co. of Hartford, 230
Conn. 795, 806, 646 A.2d 806 (1994); State v. Patterson, 230 Conn. 385, 390,
397–98, 400, 645 A.2d 535 (1994).
8
See State v. Arroyo, 292 Conn. 558, 575, 973 A.2d 1254 (2009), cert.
denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010); State v.
Connor, 292 Conn. 483, 506, 973 A.2d 627 (2009); State v. Gore, 288 Conn.
770, 786–87, 955 A.2d 1 (2008); State v. Ledbetter, 275 Conn. 534, 547, 570,
575, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164
L. Ed. 2d 537 (2006); State v. Padua, 273 Conn. 138, 178, 869 A.2d 192 (2005);
Duperry v. Solnit, 261 Conn. 309, 312, 326–27, 329, 803 A.2d 287 (2002);
State v. O’Neil, 261 Conn. 49, 74, 801 A.2d 730 (2002); State v. Payne, 260
Conn. 446, 450–53, 797 A.2d 1088 (2002); State v. Aponte, 259 Conn. 512,
522, 790 A.2d 457 (2002); Roth v. Weston, 259 Conn. 202, 232, 789 A.2d 431
(2002); State v. Revelo, 256 Conn. 494, 502–504, 775 A.2d 260, cert. denied,
534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001); State v. Griffin, 253
Conn. 195, 209–10, 749 A.2d 1192 (2000).
9
In addition to today’s decision, see Lapointe v. Commissioner of Correc-
tion, supra, 316 Conn. 268–72; State v. Carrion, 313 Conn. 823, 851–53,
100 A.3d 361 (2014); State v. Elson, supra, 311 Conn. 730, 777; Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra,
311 Conn. 169; Kervick v. Silver Hill Hospital, 309 Conn. 688, 710, 72 A.3d
1044 (2013); Tanzman v. Meurer, 309 Conn. 105, 117, 70 A.3d 13 (2013);
State v. Medrano, 308 Conn. 604, 606–607, 631, 65 A.3d 503 (2013); State v.
Polanco, 308 Conn. 242, 245, 248, 255, 260, 61 A.3d 1084 (2013); State v.
Rose, 305 Conn. 594, 605–606, 46 A.3d 146 (2012); Saleh v. Ribeiro Trucking,
LLC, 303 Conn. 276, 283, 32 A.3d 318 (2011); State v. Pena, 301 Conn. 669,
683–84, 22 A.3d 611 (2011); In re Joseph W., 301 Conn. 245, 268, 21 A.3d
723 (2011); State v. Ouellette, 295 Conn. 173, 191, 989 A.2d 1048 (2010).
10
In addition to those two categories, there are two decisions in which
we have relied on our authority to deter prosecutorial misconduct. See State
v. Payne, 260 Conn. 446, 450–53, 797 A.2d 1088 (2002); State v. Ubaldi,
supra, 190 Conn. 570–75. Finally, in a small number of cases, we have relied
on our supervisory authority to address claims that would otherwise be
unreviewable. See, e.g., Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 311 Conn. 169; State v. Revelo, 256 Conn.
494, 503, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed.
2d 558 (2001); State v. Smith, 207 Conn. 152, 162–63, 540 A.2d 679 (1988);
State v. Chung, 202 Conn. 39, 44, 519 A.2d 1175 (1987).
11
In State v. Elson, supra, 311 Conn. 770 n.30, this court incorrectly catego-
rized the decision in State v. Brown, supra, 235 Conn. 502, as one in which
we applied a newly announced rule to reverse the judgment at issue in the
appeal. Actually, in Brown, the court reversed the judgment on the basis
of its conclusion that the trial court abused its discretion in failing to conduct
a sua sponte preliminary inquiry. Id., 525–26. The court reserved its reliance
on its supervisory authority for announcing the new rule. As in other cases
in which the court had remanded a case on other grounds at the same time
that it adopted a new rule, however, the court directed that on remand to
the trial court, the new rule must be applied. Id., 532; see, e.g., State v.
Breton, 235 Conn. 206, 249–50, 663 A.2d 1026 (1995) (in decision reversing
death sentence on other grounds, announcing new rule requiring special
verdict form in death penalty cases, and instructing that new rule should
be applied on remand).
12
The father filed an objection to the proposed permanency plan, which
he subsequently withdrew.
13
I agree with the majority that the third Mathews factor, which considers
the government’s interest in the proceeding and the fiscal and administrative
burdens attendant to increasing procedural requirements, is neutral. See
Mathews v. Eldridge, supra, 424 U.S. 335.