In re Angela V.
The respondent mother appealed to this court from the judgments of the trial court adjudicating her minor children neglected. On appeal, the mother claimed that the court violated her rights to due process when it denied a motion for permission to call the two older children as witnesses that had been filed by the respondent father. Specifically, the mother claimed that the trial court employed an improper standard of proof when it denied the motion in part on the ground that it would not be in the “best interests” of the children. Held that the respondent mother‘s appeal was dismissed as moot, as the mother failed to challenge all of the bases for the trial court‘s denial of the motion for permission to call the children as witnesses: the record is clear that the court relied on two grounds in denying the motion, that it was not in the best interests of the children and that it was untimely and, as the mother failed to challenge this second independent basis for the court‘s dеcision denying the motion, this court could not afford her any practical relief; moreover, this court declined the mother‘s request to vacate that part of the trial court‘s judgment that found that it would not be in the best interests of the children to testify in order to clarify the correct legal standard that should be employed by the Superior Court in adjudicating motions for child testimony in a neglect proceeding, the mother having provided no authority that would permit this court to use the equitable remedy of vacatur to essentially render an advisory opinion in an appeal that was otherwise moot.
BRIGHT, C. J. The respondent mother, Elizabeth T.,1 appeals from the judgments of the trial court adjudicating each of her three children, ages nine, seven, and three, neglected, and the two older of those children, abused, and vesting temporary custody of the children in the petitioner, the Commissioner of Children and Families.2 On appeal, the respondent claims that the court violated her right to the due process of law when it denied the motion for permission to call the two older minor children as witnesses, which was filed by the respondent father and later joined by the respondent.3 Following the parties’ appellate oral argument, we requested supplemental briefs addressing whether the respondent‘s claim was moot in light of her failure to challenge one of the independent grounds of the trial court‘s denial of the motion to have the two older children testify.4 Having considered the supplemental briefs of the parties5 and the record in this case, we conclude that the respondent‘s claim is moot. Accordingly, we dismiss the appeal.
The following facts, as found by the trial court and that are uncontested for purposes of this appeal, and procedural history are relevant. The respondent has a long history of substance abuse, and she previously had been convicted and incarcerated on a federal drug distribution offense. In April and May, 2019, she saw a mental health and substance abuse treatment provider, who, on May 17, 2019, made a mandated referral to the Department of Children and Families (department) on the basis of several events that had been reported to her by the respondent, which alleged violence in the home toward the children. The department thereafter attempted to investigate these allegations, but encountered great hostility from both of the children‘s parents, but especially from the respondent. On May 31, 2019, the department went to the school of the two older children, who then reported abuse and neglect to the department. The department then offered services to the family, but the respondent and the respondent father refused to cooperate.
On June 4, 2019, the petitioner filed ex parte motions for orders of temporary custody and neglect petitions in the interest of the minor children alleging ongoing concerns of intimate partner violence, substance abuse, unresolved mental health concerns, and excessive physical discipline of the children. On June 4, 2019, the court granted the ex parte motions for orders of temporary custody, finding that the children were in danger of immediate physical harm. The court vested temporary custody of the minor children in the petitioner.
Between November, 2019, and February, 2020, the court conducted a consolidated trial on the issue of temporary custody in the neglect petitions. During the
On February 14, 2020, the petitioner filed a motion for a psychological evaluation of the family. The respondent did not oppose the petitioner‘s motion, and, in fact, she consented to the motion, which the court granted after a hearing.
On February 28, 2020, the court adjudicated the minor children neglected, and it found that the two older minor children also had been abused. The court ordered that all three of the children be committed to the temporary custody of the petitioner.7 This appeal followed. Additional facts and procedural history will be set forth as necessary.
The respondent claims that the court violated her right to due process of law when it denied, on the ground that it was not in the children‘s “best interests” to testify, the respondent father‘s motion for permission to call the two older minor children as witnesses, which motion she had supported. The respondent contends that the court employed an improper standard of proof when it “denied her the right to question her children at trial about [their] hearsay statements admitted into evidence based solely on a finding that it would not be in the children‘s ‘best interests’ to testify.”8 She contends that the court needed to find, by clear and convincing evidence, that it would be emotionally harmful to the children to testify and that the harm outweighed the probative value of their potential testimony. Recognizing that she did not preserve at trial this alleged constitutional issue, the respondent requests review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).9
In her appellate brief, the petitioner sets forth several reasons for rejecting the respondent‘s claim.10 She argues that this claim is not constitutional in nature but, rather, that it is an evidentiary matter, and that
As set forth in footnote 4 of this opinion, we requested supplemental briefs from the parties specifically addressing whether the respondent‘s claim was moot in light of her failure to challenge an independent ground for the trial court‘s denial of her motion to call the children to testify, namely, that the respondent father‘s motion for permission to call the two older minor children as witnesses was untimely. After considering the parties’ supplemеntal briefs and the record in this case, we conclude that her claim is moot.
“Mootness raises the issue of a court‘s subject matter jurisdiction and is therefore appropriately considered even when not raised by one of the parties. . . . Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court‘s subject matter jurisdiction. . . . We begin with the four part test for justiciability . . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interеsts of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . In determining mootness, the dispositive question is whether a successful appeal would benefit the [petitioner] or [the respondent] in any way.” (Citations omitted; emphasis in original; internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 555–56, 979 A.2d 469 (2009) (Jorden R.).
In Jorden R., our Supreme Court, sua sponte, vacated the judgment of this court after concluding that this court had lacked jurisdiction to review the merits of the respondent‘s appellate claim that the trial court had
In the present case, the respondent argues that the ruling of the trial court has to be reviewed in total and that the issue of timeliness is part and parcel of her due process claim and cannot be viewed as an independent basis for the denial of the respondent father‘s motion. The respondent further argues that “[t]he trial court‘s comments about the motion‘s untimeliness were . . . obiter dicta, lacking the force of an adjudication” in that the court did not deny the motion on the ground that it was untimely because the court, on January 10, 2020, “gave [her] permission to produce any dispositional evidence she wished on the last day of trial.” Finally, she argues that, even if her claim is moot, we should exercise our equitable рower of vacatur to correct the trial court‘s application of an incorrect legal standard to the respondent father‘s motion.
The petitioner responds that the respondent did not raise a due process claim at trial, and it is clear that the court voiced two alternative grounds for denying the respondent father‘s motion to call the older children to testify, namely, “(1) subjecting the children to interrogation by the respondent mother at trial would be detrimental to their welfare because of the trauma they endured in the . . . care [of the respondent and the respondent father]; and (2) the motion to call the minor children was untimely filed and there was no good cause for the late filing.” The рetitioner argues that “[e]ither
As required by the standing orders for the child protection docket of the Juvenile Matters session of our Superior Court, the petitioner and the respondent each filed their trial management memoranda on November 1, 2019.12 The respondent father, however, did not file a trial management memorandum. On November 13, 2019, the petitioner notified counsel for the parties that she intended to offer into evidence the exhibits сontaining the statements of the children. The trial in this matter commenced on November 15, 2019. During the petitioner‘s presentation of her case, she called a number of witnesses who testified about the children and their statements alerting the witnesses to the neglect and abuse they had suffered at the hands of the respondent and the respondent father. The petitioner also introduced exhibits that similarly recounted statements made by the children regarding the respondent and the respondent father. Much of this evidence was admitted without objection. On January 10, 2020, the petitioner rested her case, with the exception of one exhibit, which the parties were working to redact by agreement. The trial court file and the transсript from that date indicate that the respondent‘s behavior during that day‘s proceedings “was nearly contemptuous.” Near the end of the hearing, the court asked the respondent and the respondent father whether they were going to call witnesses. Counsel for the respondent father stated that he did not know. Counsel for the respondent replied in the affirmative. Nevertheless, at no time before the petitioner rested, even after hearing and seeing the petitioner‘s evidence recounting statements attributed to the children, did the respondent give any indication that she wished to call any of the children as witnesses; she also did not argue that the children‘s hearsay statements were admissible only if she was pеrmitted to cross-examine them about those statements. The court continued the matter to February 7, 2020.
On February 3, 2020, nearly one month after the petitioner had rested her case and long after the date for disclosure of witnesses set forth in the trial management orders, the respondent father filed a motion for permission to have the two older minor children testify. See Practice Book § 32a-4. He represented that the children would testify that the allegations of neglect were not accurate. The petitioner objected to the motion on the grounds that it was late, that it would be prejudicial to the petitioner to grant the motion nearly one month after she had rested her case, and that it would be “detrimеntal and emotionally harmful to the [older] minor children,” who were seven and nine years old at
During the February 6, 2020 hearing, the petitioner argued in part that the motion was untimely and that it would be prejudicial to the petitioner if it were granted. She explained that she already had presented all of her evidence, that the evidence concerning the children‘s statements was admitted, primarily without objection, through the business records exceptiоn to the hearsay rule applicable to the records of the department and the children‘s school. Specifically, the petitioner‘s counsel argued: “Then it‘s prejudicial in that we‘ve already presented the evidence and had there been notice of this and generally—well, let me start with, first, none of the evidence that was presented relied on the unavailability of the children. The exhibits that were and the information that was admitted was admitted through business record[s] of [the department], the business record[s] of the school as mandated reporters . . . . So, the admission of the statements by the children came in not through the residual that may trigger as in In re Taylor F., [296 Conn. 524, 544–47, 995 A.2d 611 (2010)], a separate hearing on the availability of the witnesses, the psychological availability of the witnesses, but, had the court wished to address that, we‘ve been foreclosed as our evidence has closed on that. And, generally, as I said, those are usually hearings that are held before trial commences or addressed during trial through the witnesses that are being called.” See In re Taylor F., supra, 544 (“a trial court properly may conclude [after an evidentiary hearing] that a child is unavailable if there is competent evidence that the child will suffer psychological harm from testifying . . . [but] [t]he court‘s determination must be based . . . on evidence specific to the child and the circumstances“).
In its oral ruling during the February 6, 2020 hearing, the court stated that it did not think that it was in the children‘s best interests to testify, and it explained that it did not want its ruling “to hang all on the linchpin of timeliness so that‘s why [it] address[ed] the . . . best interest first . . . . The [petitioner] has rested and this is why we have trial management orders that review or require parties to set forth who their witnesses are. I understand that may change for good cause from time to time but I can‘t think of anything that would have suddenly [leapt] out from what has been presented and the material presented now that would not have been apparent before. So I am going to deny the [respondent] father‘s motion.” (Emphasis added.) The court‘s written comments, contained in the trial court file for that date, specifically provide: “Court determines it would not be
Despite this record, the respondent argues that we should disregard the trial court‘s statements that it was denying the respondent father‘s motion for permission to call the children as witnesses on the ground that the motion was untimely and without a showing of good cause excusing the lateness. She contends that (1) her appellate brief, although not specifically addressing the lateness of the motion and the failure to demonstrate good cause, was a complete attack on the court‘s decision, including this ground, (2) the court‘s statement about the lateness of the motion and the failure to argue good cause was not actually a basis for the court‘s denial of the motion, and (3) we should exercise our equitable рowers to vacate the court‘s judgment. We consider each of these reasons in turn.
First, the respondent argues that her challenge to the trial court‘s order denying the motion was “a complete attack in toto on the validity of the trial court‘s order precluding her from questioning her children at the trial on the neglect petitions.” She further argues that, consequently, “[t]he appropriate treatment of the trial court‘s comments about the motion‘s timeliness is not as an independent ground upon which to affirm the judgment. Rather, this court must ‘closely examine’ any and all procedural reasons advanced by the trial court in support of its ruling as part of the due process balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).” We are not persuaded.
The respondent‘s аrgument requires us to interpret the court‘s order. “As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The legal effect of an order must be declared in light of the literal meaning of the language used. The unambiguous terms of [an order], like the terms in a written contract, are to be given their usual and ordinary meaning. . . . [An order] must be construed in light of the situation of the court, what was before it, and the accompanying circumstances.” (Citation omitted; internal quotation marks omitted.) In re Jacklyn H., 162 Conn. App. 811, 830, 131 A.3d 784 (2016).
Both in its oral ruling and in its written comments following the hearing on the respondent father‘s motion, the court provided two bases for denying the motion. The court first determined that it was not in the children‘s best interests to testify and explаined its reasoning for reaching that conclusion. Second, the court stated that the motion was untimely and explained why it was denying the motion due to its late filing. It is clear to us from the language used by the court that it concluded that both of the stated reasons constituted independent bases to deny the respondent father‘s motion.
Second, the respondent argues that the court‘s comments regarding the timeliness of the respondent father‘s motion should be disregarded as “obiter dicta” because they were not material or necessary to the court‘s ruling. The respondent argues that the timeliness of the motion really was not an issue because “on January 10, 2020, the court gave the respondent permission to produce any dispositional evidence she wished on the last day of trial.” We disagree.
The fact that the respondent may have had permission to present “any dispositional evidence” in her defense of the neglect petitions did not mean that she had a right to do so in contravention of the orders of the court or the rules of practice. The court at all times had the authority to limit the presentation of evidence based on its previous orders and the relevant rules. In any event, for the reasons previously discussed, the record is clear that the court relied on the untimeliness of the respondent father‘s motion as an independent ground for its denial on February 6, 2020. Thus, the court‘s reliance on the untimeliness of the motion was in no way “obiter dicta.”
Finally, the respondent argues that we should exercise our power of “equitable vacatur” to prevent the trial court‘s ruling from becoming “misleading legal precedent.” The respondent argues that, because the court improperly used the best interests of the children as a basis for denying the respondent father‘s motion, we should ignore the question of mootness and correct the court‘s purported error so that the appropriate test is applied in future cases should the question of whether
In In re Candace H., 259 Conn. 523, 525–26, 790 A.2d 1164 (2002), on which the respondent relies, the respondent mother had “appealed to the Appellate Court from the trial court‘s denial of her motion for visitation with the child. The Appellate Court reversed, in part, the judgment of the trial court, concluding that the trial court properly had denied the respondent‘s motion for visitation; In re Candace H., 63 Conn. App. 493, 502, 776 A.2d 1180 (2001); but impermissibly had delegated to the department and to the child‘s foster parents ‘its independent obligation to determine and further the child‘s best interest.’ Id., 504.” (Footnote omitted.) After our Supreme Court granted the department‘s petition for certification, the respondent voluntarily relinquished her parental rights, rendering the department‘s appeal to our Supreme Court moot. In re Candace H., supra, 259 Conn. 526. The court concluded that the appeal should be dismissed as moot, but it, nevertheless, granted the department‘s request to vacate the Appellate Court‘s judgment to the extent that it reversed the trial court‘s decision empowering the department and the foster parents to determine the propriety of any future visitation. Id. The court provided no explanation for its decision to vacate the judgment of the Appellate Court other than to state that it was in the public interest to do so and noting that “[v]acatur is commonly utilized . . . to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.” (Internal quotation marks omitted.) Id., 527 and n.5.
Similarly, in In re Jessica M., 250 Conn. 747, 738 A.2d 1087 (1999), our Supreme Court, after a certified appeal in a termination of parental rights case became moоt, granted the petitioner‘s motion “to vacate the judgments of the Appellate Court and the trial court . . . on the grounds that the appeal is now moot and the issues decided by those courts have not been subject to review by the Supreme Court.” Id., 749. In both In re Candace H., and In re Jessica M., our Supreme Court employed the equitable remedy of vacatur to leave for another day resolution of an issue that it did not reach because the appeal in which it would have reached the issue had been rendered moot.
In the present case, the respondent is not asking us to vacate that part of the trial court‘s judgment that relied on the best interests of the children so that the question of the appropriate standard to apply to a motion for permission to call children as witnesses in a neglect proceeding can be addressed another day in another case. Instead, the respondent is asking us to
Because the respondent challenges only one of the two separate and independent bases for the court‘s denial of the motion to call the two older minor children to testify, even if we were to agree that the court should not have considered the best interests of the children when considering the respondent father‘s motion, the fact that there is a second independent basis for upholding the court‘s determination, which she failed to challenge on appeal, renders us unable to provide her with any practical relief. On the basis of our plenary review of the record and the court‘s decision in this case, we conclude that the court utilized two independent grounds for denying the respondent‘s motion for permission to call the two older children to testify, one of which she has not challenged on appeal, rendering her challenge to the other independent ground moot.
The appeal is dismissed.
In this opinion the other judges concurred.
Notes
“5. Trial Management Procedures
“A. Four (4) weeks before any assigned trial date, all parties shall file trial memoranda intended to simplify and speed up a contested trial. The memoranda shall include the following:
“1. a summary of the petitioner‘s contentions and the respondent‘s defenses or oppositional grounds, together with a summary of settlement efforts;
“2. any pleadings or motions pending or to be filed;
“3. evaluations;
“4. admissions or stipulations;
“5. evidentiary disputes or judicial notice;
“6. (a) the name and address of each fact witness, (b) a summary of expected testimony and (c) the approximate length of time for direct testimony;
“7. (a) the name and address of each expert witness, (b) a resume or curriculum vitae, (c) a summary of the expected testimony and (d) the approximate length of time for direct testimony;
“8. a list of each pleading, motion, discovery matter, evaluation and evidence there is any dispute about or any outstanding matter, and a summary of the matter. . . .” Standing Orders for the Child Protection Docket for the Juvenile Matters session of the Superior Court (effective November 1, 2009), available at https://www.jud.ct.gov/external/super/StandOrders/Juvenile/juvenile childprot.pdf (last visited May 14, 2021).