Garvey v. Valencis
173 A.3d 51
| Conn. App. Ct. | 2017Background
- Parents disputed custody of their child; father (defendant) had sole legal and primary physical custody since 2005. Mother (plaintiff) had graduated visitation rights under a 2013 stipulation.
- On May 10, 2015 a physical confrontation occurred during a scheduled visit at the plaintiff’s home; the child became extremely upset, told police and the guardian ad litem that the plaintiff hit and pushed him, and expressed he never wanted to see her again.
- The defendant filed an emergency ex parte custody application under Conn. Gen. Stat. § 46b-56f; the trial court granted it on May 12, 2015, suspended the plaintiff’s visitation and denied contact, and scheduled a hearing within 14 days.
- The evidentiary proceedings on the ex parte order were held over multiple days (May 21, June 16, June 24, September 1, 2015) and spanned 112 days from entry of the ex parte order to final decision; the plaintiff and her counsel consented to or did not timely object to several continuances and called many witnesses.
- The trial court found, by clear and convincing evidence, that an immediate and present risk of psychological harm to the child existed and sustained the ex parte order; the plaintiff appealed challenging statutory, practice‑rule, and due process grounds and sufficiency of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 46b-56f requires the court to hear respondent before issuing ex parte relief | Garvey: statute requires effort to hear respondent; she was present and available | Valencis: statute permits ex parte relief based on applicant affidavit and does not mandate prior hearing | Court: §46b-56f does not require hearing the respondent before issuing ex parte relief; affidavit requirement suffices |
| Whether § 46b-56f(c) requires completion of the hearing within 14 days of the ex parte order | Garvey: “schedule a hearing” means the hearing must be completed within 14 days | Valencis: statute requires scheduling within 14 days, not completion; postponements are contemplated | Court: statutory language requires scheduling within 14 days only; completion may occur later, and continuances are permitted |
| Whether Practice Book §4-5 caused automatic expiration of the ex parte order after 30 days, divesting jurisdiction | Garvey: temporary order expired automatically after 30 days per §4-5, so court lost jurisdiction | Valencis: court commenced hearing within 14 days and on each hearing day made factual findings supporting continuation | Court: order did not expire because the hearing was timely scheduled/commenced and the court repeatedly found good cause to continue the ex parte order |
| Whether the 112-day delay in concluding the post-deprivation hearing violated plaintiff’s procedural due process rights | Garvey: delay was unreasonably lengthy and denied timely postdeprivation process | Valencis: plaintiff had ample opportunity and contributed to delay through witness choices and motions; she consented to continuances | Court: no due process violation—plaintiff had reasonable opportunity and contributed to/waived objections to delays |
| Whether evidence supported finding of immediate and present psychological harm | Garvey: insufficient—no mental‑health expert or disinterested witness proved harm | Valencis: testimony from police, guardian ad litem, therapist recommendation, tutor and family showed emotional/academic regression | Court: finding supported by sufficient evidence (child’s distress, therapist recommendation, regression); not clearly erroneous |
Key Cases Cited
- Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398 (2006) (statutory language should be given its plain meaning where it precludes other likely interpretations)
- Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819 (2011) (statutory construction principles: ascertain legislative intent from text and related statutes)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due process requires notice and reasonable opportunity to be heard; courts balance private, governmental, and risk interests)
- Barry v. Barchi, 443 U.S. 55 (1979) (postdeprivation hearings must proceed and be concluded without appreciable delay)
- Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (delay in postdeprivation hearing becomes constitutional violation at some point; reasonableness depends on circumstances)
- In re Paul O., 125 Conn. App. 212 (2010) (standards for appellate review of trial court fact‑findings and burden of proof in custody/temporary orders)