167 Conn. App. 428
Conn. App. Ct.2016Background
- David B., born 2003, was placed with his maternal grandmother Josefa G., who became his legal guardian; she filed a Probate petition (2013) to terminate parental rights of David’s parents.
- Probate Court issued decree terminating both parents; both parents appealed to Superior Court; Josefa died during the pendency of the appeal (December 2014).
- Probate Court appointed Josefa’s mother, Emma G., as David’s new legal guardian (Dec. 15, 2014) and later as administrator of Josefa’s estate (Dec. 22, 2014).
- Emma moved in Superior Court to be substituted as petitioner; parents objected, arguing substitution was improper without an estate representative and invoking General Statutes § 52-599 and Practice Book limits.
- Trial court granted substitution based on Emma’s status as the newly appointed guardian (pursuant to § 45a-715 authority to petition), held trial de novo on amended petition, and terminated the mother’s parental rights.
- On appeal the mother challenged only the substitution ruling (not the merits); the appellate court affirmed, holding substitution was permissible and the mother’s alternate arguments were unpreserved or unavailing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Superior Court could substitute a new guardian as petitioner after original petitioner (guardian) died | Emma (as petitioner) and court: substitution proper because Emma, as newly appointed guardian, has authority under § 45a-715 to prosecute termination and substitution avoids delay | Respondent (mother): § 52-599 inapplicable to termination proceedings; substitution required via estate representative only; Practice Book limits bar substitution motions in juvenile matters | Court: Affirmed substitution—Emma could be substituted in her capacity as guardian; § 52-599 need not be applied; policies favor permitting timely substitution to protect child’s welfare |
| Whether § 52-599 (survival statute) authorizes substitution in termination proceedings | Respondent initially invoked § 52-599 at trial (citing In re Lisa N.) but on appeal contends it’s inapplicable | Respondent argued prosecution should be by executor/administrator only; trial record showed parties had discussed § 52-599 | Court: Did not rely on § 52-599; noted § 52-599 is broadly construed but not a perfect fit here; substitution upheld on other statutory bases |
| Whether motions to substitute are procedurally authorized in juvenile matters | Respondent: Practice Book § 34a-1 limits which practice provisions apply to juvenile matters; because certain substitution rules weren’t listed, juvenile court lacked authority to consider motion | Court and Emma: juvenile statutes (e.g., § 46b-121) grant broad authority to make orders to protect child, including substitution; Practice Book list not exclusive | Court: Argument unpreserved; even if preserved, § 46b-121 and other practice provisions permit substitution to secure child’s welfare |
| Whether appellant may change position on appeal after advancing contrary position at trial | Respondent argued on appeal that proceedings could not continue after petitioner’s death (new argument) | Trial record shows respondent argued in trial court that estate representative under § 52-599 should be substituted and did not contend action must abate | Court: Doctrine of invited/induced error bars new appellate position; appellate challenge rejected |
Key Cases Cited
- Burton v. Browd, 258 Conn. 566 (Conn. 2001) (discusses § 52-599 and survival of actions)
- In re Allison G., 276 Conn. 146 (Conn. 2005) (characterizing neglect/juvenile proceedings as sui generis)
- In re Bruce R., 234 Conn. 194 (Conn. 1995) (noting gravity of termination of parental rights)
- Commission on Human Rights & Opportunities v. Greenwich Catholic Elementary School System, Inc., 202 Conn. 609 (Conn. 1987) (describing § 52-599’s broad sweep and statutory exceptions)
- Baskin's Appeal from Probate, 194 Conn. 635 (Conn. 1984) (appeal from probate is de novo in Superior Court)
- In re Quamaine K., Jr., 164 Conn.App. 775 (Conn. App. 2016) (emphasizing need for speedy resolution in termination proceedings)