IN RE JEWELYETTE M.* JOHN N. ET AL. v. COMMISSIONER OF CHILDREN AND FAMILIES (SC 21055) IN RE JEWELYETTE M. (SC 21068)
SC 21055, SC 21068
Supreme Court of Connecticut
March 21, 2025
Mullins, C. J., and McDonald, D‘Auria, Ecker, Alexander, Dannehy and Elgo, Js.
* In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the court.
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Syllabus
The foster parents of the minor child, J, appealed from the decision of the trial court to remove them as intervenors in the dispositional phase of neglect proceedings concerning J. Although the foster parents were initially granted intervenor status, the trial court later granted the motion of the petitioner, the Commissioner of Children and Families, to remove them as intervenors during the pendency of the neglect proceedings in light of the Appellate Court‘s then recent decision in In re Ryan C. (220 Conn. App. 507), in which the court concluded that nonrelative foster parents are precluded by statute (
The trial court improperly removed the foster parents as intervenors on the basis of In re Ryan C., this court having concluded that In re Ryan C. was wrongly decided and must be overruled, and, accordingly, this court reversed the trial court‘s order removing the foster parents as intervenors and granted the foster parents’ writ of error insofar as they sought reversal or vacatur of the trial court‘s revocation order, and the case was remanded for a new revocation hearing.
This court concluded that
There was no question that nonrelatives are permitted to intervene in the dispositional phase of neglect proceedings under
Nothing in the text of
Regardless of whether a foster parent has been granted intervenor status, under
Nonetheless, under
(One justice concurring in part and dissenting in part, with whom another justice joins in part; two justices dissenting in two opinions)
Argued December 19, 2024—officially released March 21, 2025**
Petition, in the first case, by the Commissioner of Children and Families to adjudicate the respondents’ minor child neglected, brought to the Superior Court in the judicial district of New Britain, Juvenile Matters, and tried to the court, Abery-Wetstone, J.; judgment adjudicating the minor child neglected and committing the minor child to the custody of the commissioner; petition, in the second case, by the foster parents of the minor child for a writ of habeas corpus, brought to the Superior Court in the judicial district of New Britain, Juvenile Matters; thereafter, the court, C. Taylor, J., granted the foster parents’ motion to intervene in the first case and their motion to consolidate the cases; subsequently, the court, C. Taylor, J., granted the commissioner‘s motions for an order that the foster parents be removed as intervenors in the first case and to bifurcate the cases, and the foster parents appealed; thereafter, the foster parents filed a writ of error from, among other orders, an order of the court, Daniels, J., granting the commissioner‘s motion to revoke the commitment of the minor child. Reversed; writ of error granted in part; further proceedings.
Brandon B. Fontaine, with whom was Meaghan E. Collins, for the appellants and plaintiffs in error (foster parents).
Evan O‘Roark, assistant solicitor general, with whom, on the brief, was William Tong, attorney general, for the appellee and defendant in error (commissioner).
** March 21, 2025, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
James P. Sexton, assigned counsel, for the minor child.
Opinion
ECKER, J. These appeals concern the legal rights of foster parents to participate, as intervenors or otherwise, in neglect proceedings with respect to the best interest of any child who either is currently living with the foster parents or has been in the foster parents’ care within the year prior to the initiation of any such proceeding. The primary issue before us is whether
Jewelyette M., who is now nearly ten years old, was committed to the care and custody of the petitioner, the Commissioner of Children and Families (commissioner),
Soon after the trial court issued its decision in May, 2023, the Appellate Court released its opinion in an unrelated case, In re Ryan C., 220 Conn. App. 507, 299 A.3d 308, cert. denied, 348 Conn. 901, 300 A.3d 1166 (2023), in which the court held that
Following the foster parents’ removal as intervenors, the commissioner filed a new motion to revoke Jewelyette‘s commitment, which the trial court, Daniels, J., granted after a brief hearing on November 4, 2024, the details of which will be described later in this opinion. In SC 21068, the foster parents claim that the trial court deprived them of their right to be heard in that proceeding under
I
When Jewelyette was born, both she and her mother tested positive for opiates and methadone. Jewelyette‘s withdrawal symptoms were so severe that she was kept in a neonatal intensive care unit for more than one month. Prior to her release from the hospital, the commissioner sought
A trial on that petition was scheduled to begin in March, 2020, but was postponed due to the onset of the COVID-19 pandemic. In August, 2020, the commissioner filed an updated permanency plan, which continued to call for the termination of John‘s parental rights and for Jewelyette‘s adoption. John filed an objection to the plan, and, a short time later, the commissioner filed a new permanency plan, this time recommending reunification. Jewelyette‘s attorney objected to the new plan, and the trial court sustained her objection. In doing so, the court found that “John has never cared for a child of any age. . . . Jewelyette has never been in John‘s care at any time during her life. . . . John has spent the vast majority of Jewelyette‘s life of five years and seven months either incarcerated or on parole. Counsel for Jewelyette accurately points out that [the Department of Children and Families (department)] has supplied no therapeutic or scientific evidence to support reunification. There is no credible evidence indicating that [the department] sought any psychological professional‘s review or insight before deciding that reunification was appropriate. Under cross-examination by counsel for [Jewelyette], [the department‘s case worker] admitted that [the department had] failed to seek any update[d] [psychological] evaluation [of John] . . . . [John] has worked hard to accomplish his rehabilitation. However, his own personal rehabilitation does not automatically make him an appropriate parent for Jewelyette.”
Thereafter, the department ordered an updated psychological evaluation of John. Following the completion of that evaluation, in 2021, John filed a motion to revoke Jewelyette‘s commitment, asserting that he had “successfully completed all expectations under his court-ordered specific steps . . . [and that] the court ordered evaluation supports and recommends reunification . . . .” By this time, Jewelyette was six years old and deeply bonded with her foster parents, whom John had long suspected
In November, 2021, the commissioner notified the foster parents that Jewelyette would be removed from their care in approximately one week‘s time and placed in the care of John‘s sister. The foster parents responded by filing (1) an application for a writ of habeas corpus under
With the foster parents participating as intervenors, a trial on the consolidated matters commenced in April, 2022. In May, 2022, Jewelyette‘s attorney of almost seven years, Elizabeth Berman, filed a motion to withdraw as her counsel. Berman informed the court that John‘s behavior toward her had so “unnerved” her that she
The trial resumed six months later, in November, 2022. Over the course of six nonconsecutive days, the court heard testimony from numerous witnesses, including Stephen M. Humphrey, the clinical psychologist who conducted psychological evaluations of John in 2017, 2019 and 2021; Haley McDonald, Jewelyette‘s therapist; and various other social workers, visitation supervisors and department employees familiar with the case. At the conclusion of the evidence, Jewelyette‘s new attorney, Roger E. Chiasson II, urged the court to deny John‘s motion to revoke and to grant the foster parents’ application for guardianship. Chiasson argued that Jewelyette‘s foster parents were the only parents she had ever known, that she strongly identified as a member of their family and that removing her from their care could cause irreparable, psychological harm. He further argued that Jewelyette had made it clear to him that she wanted “to be with [her] mommy and . . . daddy and her sister,” not with John.
John‘s attorney countered that Jewelyette‘s antipathy toward John was the product of the foster parents’ influence and that John had done everything the department had asked of him to achieve reunification. Michael J. Besso, the assistant attorney general representing the commissioner, did not dispute that there was “a lot of evidence about the good relationship between the foster parents and [Jewelyette]. . . . Is that relationship stronger than it is with [John]? Yes, it is. . . . Humphrey notes that. The department recognizes that.” He argued, however, that Humphrey had also testified that, although removing Jewelyette from her foster parents’ home would present a number of “challenges,” removal could be successful with the right psychological supports in place. He further argued that, to defeat the motion to revoke, Jewelyette‘s attorney and her foster parents had to prove that it would be “detrimental” to Jewelyette to be taken from her foster parents, and no such evidence had been produced. Besso also argued that the evidence strongly suggested that Jewelyette‘s anxiety and discomfort around John were attributable to her foster parents’ influence rather than anything John was doing.
In a memorandum of decision dated May 15, 2023, the trial court denied the motion to revoke. The court began by explaining that the party seeking revocation has the burden of establishing by a preponderance of the evidence that cause for commitment no longer exists; if that burden is met, then the party opposing revocation must demonstrate by clear and convincing evidence that revocation is not in the child‘s best interest. The court found that, although “John ha[d] resolved some of the issues [that previously] plagued him,” his “mental health and parenting issues ha[d] not adequately resolved so as to allow [him] to be a safe, responsible and nurturing father for Jewelyette.”
In reaching its determination, the court rejected John and the commissioner‘s claim that the foster parents were responsible for Jewelyette‘s negative feelings toward John. The court found “no credible evidence to indicate that anyone [other than John himself had] done anything to alienate Jewelyette from him.” The court
Because John had failed to demonstrate that cause for commitment no longer existed, Jewelyette and the foster parents were not required to demonstrate that continued commitment was in Jewelyette‘s best interest. Nevertheless, “in an abundance of caution,” the court proceeded to find by clear and convincing evidence that Jewelyette and the foster parents had established that it was in Jewelyette‘s best interest to remain with her foster family. The court stated in relevant part: “Jewelyette does not accept John as her parent. She sees the foster parents as her parents. The clear and [convincing evidence] shows that she will never accept John as her parent, regardless of whatever duress is placed [on] her to accept John in that role. The conduct of John has served to alienate Jewelyette from him. [The department] has allowed John to conduct himself in whatever manner that he wishes . . . during visitation and has done little to correct him, despite the anxiety and discomfort that [his conduct] causes Jewelyette. John shows no prospects of correcting his parenting to an acceptable level. He is hell-bent on parenting in his way, despite the fact that he has never previously raised a child and . . . has been told otherwise. In fact, [the department] has supported his aberrant parenting by removing professionals from the case who dared to dissent.” The court concluded: “Jewelyette has experienced anxiety and discomfort in her short life. Her stability and her hope for the future lie in the stable placement that she has with [her] foster family. To remove her from it would be to blight her life in perpetuity.”
Two months after the court issued its decision, the Appellate Court released its decision in In re Ryan C., supra, 220 Conn. App. 507. On the basis of that decision, the commissioner filed in the trial court a motion to remove the foster parents as intervenors and to bifurcate the foster parents’ habeas petition and the neglect proceeding, which the trial court granted on December 11, 2023. The foster parents filed the present appeal (SC 21055) from the order removing them as intervenors.
In the interim, the commissioner filed a new revocation motion and permanency plan, calling for revocation of Jewelyette‘s commitment and a transfer of guardianship to John‘s sister. The case was reassigned to a different judge, and, on July 16, 2024, the trial court, Daniels, J., granted in part the commissioner‘s ex parte motion for emergency relief to vacate the 2021 injunction preventing Jewelyette‘s removal
A hearing on the commissioner‘s motion to revoke was held on November 4, 2024. The hearing was uncontested because the foster parents had been removed as intervenors. Prior to the start of the hearing, the foster parents sought to exercise their right to be heard pursuant to
At the conclusion of the hearing, Jewelyette‘s attorney, Deetta C. Roncone-Gondek, and guardian ad litem, Martha Stone, both of whom were appointed after the foster parents were removed as intervenors, asked the court to impose a six month period of protective supervision as a condition of revocation, arguing that protective supervision was warranted given Jewelyette‘s fragile emotional state, John‘s lack of parenting experience, and the fact that Jewelyette continued to express a desire to return to her foster parents.8 Roncone-Gondek informed the court that she had visited Jewelyette the night before and that, while Jewelyette previously had expressed a desire to live with John, she spontaneously offered the previous night that she wanted to live with her foster parents, that she preferred their rules to John‘s, and that she did not like John‘s
Roncone-Gondek concluded her remarks by stating: “I think it‘s clear that the system has failed Jewelyette. I won‘t remark on who specifically, or how it happened, because I think, quite frankly, we all played a role. We‘ve played a role in that since the inception of this case many, many years ago. I strongly believe and assert that, should this court revoke commitment and close out without a period of [protective supervision], as [the department] is suggesting, that would be failing her once again. We have this threat of litigation constantly hanging over our heads, and we all want to resolve that, but not at the expense of [Jewelyette]. . . . [A]s to the revocation, I will leave that decision to the court‘s discretion. As Jewelyette‘s position has continued to vacillate and often vacillates in a single visit, I would ask the court absolutely to order a period of protective supervision should the revocation be granted.”
After Roncone-Gondek finished speaking, the trial court found by a preponderance of the evidence that cause for commitment no longer existed, that revocation of commitment was in Jewelyette‘s best interest, and that guardianship should be transferred to John subject to a six month period of protective supervision (November 4 order). The court then congratulated and complimented John for his persistence, observing that there must have been “plenty of times during the life of this case that you might‘ve been tempted to just throw in the towel, but your perseverance is paying off today.”
The foster parents thereafter filed a writ of error (SC 21068),9 claiming, among other things, that the trial court had violated their right to be heard under
and appeal from the order removing them as intervenors.
Approximately three weeks later, John was admitted to the hospital for treatment of an unspecified illness, and he passed away on or about January 21, 2025. On January 23, 2025, the commissioner filed an “ex parte motion to open and modify the disposition of protective supervision and [to] transfer guardianship by agreement” to John‘s sister. The trial court granted this motion that same day. On January 24, 2025, the commissioner moved to dismiss this appeal and writ of error, arguing that both were moot because there was no practical relief this court could afford the foster parents in light of what the commissioner referred to as the trial court‘s “interim order” of January 23, 2025, which the commissioner argued
II
The foster parents first claim that the trial court improperly removed them as intervenors under the authority of In re Ryan C., which they argue was wrongly decided and should be overruled. The facts of In re Ryan C. mirror the facts of the present case. There, the trial court granted the foster mother‘s motion to intervene for purposes of opposing a motion to revoke the commitment of her foster child, Ryan. See In re Ryan C., supra, 220 Conn. App. 516. After a trial, the court found that revocation was not in Ryan‘s best interest and granted the foster mother‘s motion to transfer guardianship of him to her. See id., 517–18. Ryan‘s father appealed on the ground that the trial court lacked the authority to grant the foster mother‘s motion to intervene. See id., 518–19, 521–22. The Appellate Court agreed, concluding that, although
intervenor status to nonrelatives,
In reaching its determination, the Appellate Court relied principally on a 2001 amendment to General Statutes (Rev. to 2001)
Id., 526. The court expressed the view that, because
In this appeal, the foster parents claim that the Appellate Court incorrectly concluded in In re Ryan C. that, by changing the word “standing” to “the right to be heard” in General Statutes (Rev. to 2001)
During oral arguments before this court, the commissioner’s counsel conceded that
To the extent this appeal turns on a question of statutory construction under
It is undisputed that our rules of practice authorize nonrelatives to intervene in the dispositional phase of juvenile proceedings. Practice Book § 26-1 (m) (3) defines “parties” to a juvenile proceeding to include “any person who is permitted to intervene in accordance with [Practice Book §] 35a-4.” Practice Book § 35a-4 (c), in turn, provides that “persons unrelated to the child or youth by blood, marriage or law . . . may move to intervene in the dispositional phase of the case, and the judicial authority may grant said motion if it determines that such intervention is in the best interests of the child or youth or in the interests of justice.” It is well established that a revocation hearing is a dispositional phase of a neglect proceeding. See, e.g., In re Santiago G., 318 Conn. 449, 469–70, 121 A.3d 708 (2015); In re Shanaira C., supra, 297 Conn. 758–59; see also Practice Book § 35a-14A.
Prior to In re Ryan C., we are not aware of any court, party, agency or legislator ever questioning the trial court’s authority to grant foster parents permissive intervenor status in the dispositional phase of a neglect proceeding. Indeed, until 2001, what is now
That said, we readily acknowledge that the legislature possesses the authority to enact legislation barring foster parents from intervening. It is well established that “the expectations and entitlements of foster families can be limited by the state.” (Internal quotation marks omitted.) Hunte v. Blumenthal, 238 Conn. 146, 164, 680 A.2d 1231 (1996); see id. (“[t]he rights of foster parents are defined and restricted by statute“). “[A]lthough [t]he Superior Court is empowered to adopt and promulgate rules regulating pleading, practice and procedure . . . [s]uch rules shall not abridge, enlarge or modify any substantive right . . . .” (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 639, 847 A.2d 883 (2004). Thus, when “a statute creates a substantive right [or prohibition], a conflicting [P]ractice [B]ook rule cannot stand.” (Emphasis omitted; internal quotation marks omitted.) Id., 639 n.24. The issue, therefore, is not whether the legislature can prohibit foster parents from intervening in the dispositional phase of a proceeding held pursuant to
We begin with the language of the statute. Section
It is not evident to us that, by affording foster parents an automatic right to be heard in neglect proceedings, subsection (p) of
In In re Ryan C., the Appellate Court reached a different conclusion on the basis of the changes implemented by the 2001 amendment. See In re Ryan C., supra, 220 Conn. App. 525–26. As the Appellate Court explained, prior to 2001, what is now subsection (p) of
Although we find the statute unambiguous with respect to this issue, we will nonetheless examine the legislative history for the purpose of responding substantively to, and out of due regard for, the analysis set forth by the Appellate Court in In re Ryan C.14 The limited relevant legislative history of the 2001 amendment refutes the notion that the legislature had any intention of withdrawing the trial court’s authority to allow foster parents to intervene in a proceeding within the purview of
p. 2077. Senator McKinney then expressed, “for purposes of legislative intent,” his “concern” that the proposed change could be interpreted as “prohibit[ing] a court if it thought it was in the best interest of [the child, from] granting standing to foster parents.” Id., p. 2078. Senator Handley responded, “[t]he federal law does not preclude nor does this law preclude foster parents or others having standing if a judge so decides.” Id. Senator McKinney responded, “Thank you, Senator Handley. . . . Again, I support this amendment. I just want to [ensure] that should a foster parent believe that there are problems with a permanency plan and [wish] to seek leave of [the] court [to intervene], they have the right to do so and I . . . thank Senator Handley for her help.” Id., pp. 2078–79.
The discussion between Senators Handley and McKinney makes two things clear. The 2001 amendment (1) eliminated the automatic standing that foster parents previously enjoyed under General Statutes (Rev. to 2001)
Like Connecticut, many states amended their child protection statutes following passage of the ASFA.17
See, e.g., In re Elvin G., 310 Conn. 485, 505 n.18, 78 A.3d 797 (2013) (changes made to juvenile statutes after 1998 were “prompted by the federal [ASFA] . . . which set a number of prerequisites for qualification for certain federal funding“); In re Adoption of Sherry, 435 Mass. 331, 337 n.5, 757 N.E.2d 1097 (2001) (Massachusetts law requiring that foster parents receive notice and right to be heard “tracks the requirements of the [ASFA] . . . which offers [f]ederal funding to [s]tates in compliance“).
Our research has not uncovered any case law from other states interpreting “the right to be heard” language at issue as precluding permissive intervention.
See, e.g., F.W. v. T.M., 140 So. 3d 950, 957 (Ala. Civ. App. 2013) (“the plain language of the statute does not prohibit a foster parent from petitioning to intervene in an action before the juvenile court“); Dept. of Health & Social Services, Office of Children’s Services v. Zander B., 474 P.3d 1153, 1171 (Alaska 2020) (“[w]hen the cautious use of . . . permissive intervention is necessary to promote the child’s best interest, the trial court has proposition that “[s]ister state courts do not allow foster parent intervention [in the absence of] express statutory authorization.” In our view, it is more accurate to say that Roberto F. and In re Doe stand for the proposition that sister state courts with rules similar to but not coextensive with rule 24 (b) (1) do not allow foster parent intervention in the absence of express statutory authorization, unless intervention is justified under the common question of law or fact provision. Notably, the court in Roberto F. concluded that the trial court did not abuse its discretion in granting the foster parents’ request for intervention on the ground that there were common questions of law and fact between the foster parents’ termination petition and the dependency proceeding. See Roberto F. v. Arizona Dept. of Economic Security, supra, 52.
The third case on which the commissioner relies, In re Interest of Enyce J., 291 Neb. 965, 870 N.W.2d 413 (2015), is also distinguishable because, unlike in Connecticut, which “has a unified court system” in which “[a]ll . . . matters“—criminal, civil and juvenile—“fall within the subject matter jurisdiction of the Superior Court“; State v. Angel C., 245 Conn. 93, 108 n.17, 715 A.2d 652 (1998); Nebraska’s Juvenile Court “is a statutorily created court of limited and special jurisdiction” that lacks the authority to permit equitable intervention in any juvenile proceeding. In re Interest of Enyce J., supra, 976–77. Finally, the commissioner cites In re G.C., 558 Pa. 116, 735 A.2d 1226 (1999), which held that a Pennsylvania foster parent lacked standing to seek or contest awards of custody of their foster children. Id., 117. Pennsylvania, however, has a statute expressly providing that only foster parents who have been awarded custody of their foster child have standing to intervene in neglect proceedings. See
the discretion to employ it“), overruled in part on other grounds by Blythe P. v. Dept. of Health & Social Services, Office of Child Services, 524 P.3d 238 (Alaska 2023); Schubert v. Arkansas Dept. of Human Services, Docket No. CA 09-695, 2010 WL 374183, *3 (Ark. App. February 3, 2010) (state law modeled after ASFA does not preclude foster parent intervention); State ex rel. C. H. v. Faircloth, 240 W. Va. 729, 737, 815 S.E.2d 540 (2018) (“What [West Virginia case law] properly illustrates is that the right to be heard afforded under
The commissioner contends that, even if subsection (p) of
subsection provides in relevant part: “(1) (A) If not later than thirty days after the preliminary hearing, or within a reasonable time when a relative resides out of state, the Commissioner of Children and Families determines that there is not a suitable person related to the child or youth by blood or marriage who can be licensed as a foster parent or serve as a temporary custodian, and the court has not granted temporary custody to a person related to the child or youth by blood or marriage, any person related to the child or youth by blood or marriage may file, not later than ninety days after the date of the preliminary hearing, a motion to intervene for the limited purpose of moving for temporary custody of such child or youth. If a motion to intervene is timely filed, the court shall grant such motion except for good cause shown. . . .”
The commissioner’s reliance on subsection (d) of the statute fails for the same reason that her claim that subsection (p) bars foster parent intervention fails. Specifically with respect to subsection (d), the fact that the provision grants a child’s relatives the right to inter-vene for the purpose of seeking temporary custody in the earliest stages of a case when no suitable custodian has been identified in no way suggests or implies that, at a later stage in the process, a foster parent may not intervene in the proceeding for some other purpose.
We see nothing in the text of
Accordingly, we conclude that
to do so.21 To the extent In re Ryan C. holds otherwise, it is hereby overruled.22
Because we conclude that the foster parents were improperly removed as intervenors, their rights as inter-23
In this regard, contrary to the assertion in Judge Elgo’s dissenting opinion, the “interest” of the foster parents when seeking permissive intervention is not their interest in pursuing their own desire to obtain or extend their status as caregiver and custodian of the child but, rather, their unique interest in seeing that the future welfare of the child that they have lived with, cared for, and loved for a long time is placed into the hands of the person(s) best equipped to ensure the best interest of the child. As the commissioner acknowledged in her brief opposing intervention in the trial court: “Regarding the proposed intervenors interest in the case, it cannot be denied that they have an interest in Jewelyette’s care.” It is precisely because of the unique knowledge and perspective possessed by the foster parents in some cases that the interests of a foster parent will not necessarily be adequately represented by the existing parties.
venors must be restored and the case must be remanded for a new revocation hearing.23 See, e.g., Reilly v. State, 119 Conn. 217, 221, 175 A. 582 (1934) (“the effect of a reversal is to destroy the judgment in that action, to restore the parties to the position in which they were before the judgment was rendered, and to permit the [reentry] of the case in the trial court for disposition as though no judgment had been [rendered]“); Mulholland v. Mulholland, 31 Conn. App. 214, 219, 624 A.2d 379 (1993) (“appellate reversal restore[s] the parties to the position in which they were before the judgment was rendered” (internal quotation marks omitted)), aff’d, 229 Conn. 643, 643 A.2d 246 (1994); see also In re Shanaira C., supra, 297 Conn. 762–63 (reversing judgment and remanding case for new revocation hearing when trial court improperly had limited intervenor’s right to participate at hearing); In re Nasia B., 98 Conn. App. 319, 329–30, 908 A.2d 1090 (2006) (reversing judg-
made eighteen months prior to the revocation decision. The commissioner never raised this claim of error in the trial court, either as a ground in opposition to intervention or later as a basis to remove the foster parents as intervenors. During oral argument on the motion to intervene, the commissioner’s counsel argued that, although the foster parents had no standing to intervene as a matter of right, the trial court had discretion under Practice Book § 35a-4 to grant them permissive intervention. At that time, the commissioner argued that the court, in the exercise of its discretion, should deny intervention because, among other reasons, the foster parents’ concerns were adequately represented by Jewelyette’s counsel, who also opposed revocation and would likely call the foster parents as witnesses, which would give them an opportunity to be heard on the matter. The commissioner did not claim that intervention should be denied because it would require the trial court to engage in an improper comparison between the foster parents and John.
Our rules of practice vest the trial court with discretion to grant permissive intervention. Because the commissioner never raised in the trial court the discretionary consideration that is now raised on appeal as an alternative ground for affirmance, “we cannot determine whether the trial court abused an exercise of discretion that it neither made nor was asked to make. Under these circumstances, we decline to review the [commissioner’s] unpreserved claim.” State v. Fernando V., 331 Conn. 201, 213, 202 A.3d 350 (2019).
ment and remanding case for new revocation hearing when trial court had violated foster parent’s right to be heard). In reaching this conclusion, we are acutely aware that much has happened in the more than eight months since Jewelyette was removed from her foster parents’ home. John’s death doubtlessly has compounded the pain, dislocation and uncertainty she experienced as a result of the changes imposed since last summer, and even prior to that time. What is in Jewelyette’s best interest now may have changed from what was in her best interest in 2023, or last year, and the focus of any new dispositional hearing must be on her status and her best interest at the time of that hearing.24
III
Because the issue could arise again on remand, and to prevent any further delay in those proceedings, we will address the foster parents’ claim in SC 21068 that the trial court deprived them of their right to be heard under
The following additional facts and procedural history are relevant to this claim. At the start of the November 4, 2024 hearing, counsel for the foster parents argued that her clients’ right to be heard under
they would object to the revocation of commitment, but, [without] the benefit of [knowing] all the evidence, [they cannot take a fully] informed position . . . .” Counsel further argued that allowing the foster parents to be present for the hearing protected not only their right to be heard and to comment on Jewelyette’s best interest, but also served Jewelyette’s right to
The trial court responded that the foster parents should have received a copy of the motion to revoke and the revocation study, and, therefore, their claim of being uninformed was “not entirely accurate . . . .” The court further stated: “I’m not sure, given the current procedural posture of this case, that [the foster parents] necessarily enjoy the rights afforded foster parents. Nonetheless, the court is extending to them that right to be heard, even though, in their current legal status, they are not currently and have not been for several months the foster parents of [Jewelyette].” The court further stated that, although the court was aware that the foster parents were appealing from the order removing them as intervenors, the removal order was “based [on] the law [in In re Ryan C.] as it exists today. Certainly . . . allowing them to be heard, either at the start of this hearing or [at] the conclusion of the hearing . . . satisfies the spirit of their right to be heard with regard to best interest.” The court continued: ” I think, at this point . . . it’s quite clear to everybody what the [foster parents’] position is vis-a-vis the motion before the court this morning. I don’t think that comes [as] any great surprise. Nonetheless, I am going to give them the right to be heard. I’m going to allow them to make a statement, and then [I] will excuse them. I . . . think that . . . that certainly affords them the rights that they are provided under the law. But it also respects the fact that, as nonparties, the balance of this proceeding is confidential, and I don’t see that they have the right to participate in the balance of the proceeding.”
After the court finished speaking, the foster parents, through their attorney, made the following statement: “[For nearly seven years, the foster parents] provided the day-to-day care [for] Jewelyette and parented her as their own. . . . In July of 2024, after being removed, the department required that all [their] contact with Jewelyette be supervised, despite [their] years as licensed foster parents, a license which remains current. . . . Jewelyette has considered [them] her mother and father for several years and continues to see them this way, to this very day. [The foster parents] also have another daughter . . . who Jewelyette considers to be her sister.
“Since the removal, the [foster parents] have had approximately five in-person visits with Jewelyette . . . . During the in-person visits, Jewelyette runs to [them] to embrace them, asking when she can return home. At the end of [the] visits, Jewelyette struggles to leave [them], often crying, reaching out to them and not understanding why she can’t return to their home. The removal in July was based on an ex parte motion filed with this court, which included a statement provided by [Jewelyette’s current] therapist,” Juliette Cole, who “opined that Jewelyette was suffering from Stockholm syndrome, a diagnosis not recognized by the [fifth edition of the Diagnostic and Statistical Manual of Mental Disorders].” Counsel argued that it was outrageous to suggest that Jewelyette’s love for her foster parents was similar to the feelings a captive may develop for her captors. “Outside of this outrageous idea that foster parents . . . are somehow akin to kidnappers, the continued love and desire that Jewelyette has for [her foster parents constitute] evidence that there is a true bond between them. . . . Jewelyette’s attorney has made it clear on several occasions that Jewelyette continues to view [her foster parents] as her mom and dad and wishes to have contact with them going forward.
“In May of 2023, there was a decision . . . by Judge . . . Taylor, [who] found that [John] had not rehabilitated and that cause for commitment still existed. To the [foster parents’] knowledge, there has been no substantial change in this case since the hearing that resulted in that decision. Rather, on the same evidence, less . . . evidence [in fact] . . . the department is asking a different trier of fact [to] make the opposite finding and [to] revoke commitment [and to place] Jewelyette [with John].
“Based on the limited information available to the [foster parents] and their interactions with Jewelyette regarding her expressed desires, the [foster parents] object to the revocation of commitment and ask this court to fully assess how [John] has rehabilitated, since May, 2023, [when] the court found he had not [rehabilitated].” Counsel also reiterated the foster parents’ request that the court refrain from making any decision on the motion to revoke while their appeal from the order removing them as intervenors was pending.
After the foster parents were excused from the hearing, the court asked the parties how it should proceed given that there was no written objection to the motion to revoke. Jewelyette’s counsel responded that the matter was not as straightforward from her perspective because Jewelyette continued to “waffle” on the issue of revocation and continued to express a desire to live with her foster parents. She further stated that, “at [a] minimum, we should . . . put on the social worker and allow for questioning, just to make the record very clear on where things were at and how we got here.” The court agreed, stating that, given the nature of the proceeding, it made sense to “put the [commissioner] through the paces of calling a witness and making [her] case,” even if there was no formal objection to the motion. The assistant attorney general responded that she had not prepared any witnesses because she thought the matter was uncontested. She further argued that Jewelyette’s wishes with respect to the foster parents were irrelevant. John’s attorney similarly argued: “Your Honor, can I just ask, I get, you know, Jewelyette’s position. However, I think we should all be [cognizant] that we are in child protection court, and I have never in [my] twenty plus years had a case determined solely by . . . [a] nine year [old’s] wishes.”
The court ordered a recess until the afternoon, when the commissioner presented the testimony of department social worker Ashley Cotto, a strong proponent of reunification with extensive knowledge of the case. Cotto, who had authored the revocation study, testified regarding the various steps John had completed over the years to achieve reunification, as well as the services he and Jewelyette were receiving to assist them in this regard. Cotto testified that Jewelyette was presently living with John for a trial reunification period and described John’s and Jewelyette’s daily routines and the supports in place to facilitate their reunification. In response to questioning, Cotto acknowledged that the “trial home visit has not been without some struggles,” which she explained mainly concerned Jewelyette’s desire to be with her foster parents. When asked to elaborate, Cotto described an incident during which “Jewelyette reported that she wanted to harm herself if she was not able to go back to [her foster parents’ house],” and her therapist had thought it best that she not return to John’s house that evening. She further testified that Jewelyette’s therapist, Cole, attributed Jewelyette’s “dysregulation” to having contact with the foster parents. According to Cotto, “Jewelyette struggles . . . after her visit [with them], prior to her visit, and it takes her a few days [after her visit] for her
behavior, I want to say, to go back to normal. After her visit, she‘ll be really dysregulated. [She‘ll tell John], you know, you‘re not my real dad; [my foster father is] my real dad.‘’
At the conclusion of the hearing, the trial court found by a preponderance of the evidence that cause for commitment no longer existed, that revocation of commitment was in Jewelyette‘s best interest, and that guardianship should be vested in John subject to a six month period of protective supervision.
The foster parents argue on appeal that, for the right to be heard conferred by
This court has yet to consider the meaning of the right to be heard under
On the other hand, the right to be heard is not a trivial entitlement in this context and should be understood to be significant and meaningful. See, e.g., State ex rel. H.S. v. Beane, supra, 240 W. Va. 649 (foster parents’ right to be heard includes ‘‘[the right to be] informed of the evidence presented during the . . . hearing‘’ and ‘‘most certainly . . . a right to be heard on these issues in a meaningful way,‘’ and ‘‘[the] lack of information about the [family members‘] motion [for custody and visitation] deprived the [foster parents] of a meaningful opportunity to be heard‘‘); cf. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (‘‘[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner‘’ (internal quotation marks omitted)).25 We are persuaded that the right to be heard and to comment on the best interest of a child in a proceeding concerning the child‘s placement must at the very least include, in the normal course, the right to be present throughout the proceeding in question and to argue at the appropriate time as to the child‘s best interest in light of the evidence presented relating to that issue.26
The commissioner argues that interpreting the right to be heard to encompass a right to be present throughout the proceeding runs afoul of the confidentiality provisions of
As for juvenile court records,
We attach an important caveat to the foregoing framework. Although we hold that the right of eligible foster parents to be heard under
IV
Judge Elgo‘s dissent consists primarily of policy arguments that are neither embodied in the statutory text nor found in the legislative history of
With respect to Judge Elgo‘s assertions that our construction of
This court has said repeatedly that, ‘‘[w]hile the rights of parents qua parents to the custody of their children is an important principle that has constitutional dimensions . . . [those] rights are not absolute. We [have] reject[ed] the claim of the so-called parental rights theory under which the parent has rights superior to all others except when he is proved unfit.‘’ (Citations omitted; internal quotation marks omitted.) In re Juvenile Appeal (Anonymous), 177 Conn. 648, 661, 420 A.2d 875 (1979). ‘‘We have consistently held in matters involving child custody that while the rights, wishes and desires of the parents must be considered it is nevertheless the ultimate welfare of the child [that] must control the decision of the court. . . . In fact, the best interest of the child standard is implicitly incorporated into the commitment statute . . . which authorizes the Juvenile Court to commit the custody of a child to another if it finds that the child needs the care, discipline or protection of the state.‘’ (Internal quotation marks omitted.) In re Ava W., 336 Conn. 545, 570, 248 A.3d 675 (2020).
In this regard, it bears repeating that, under our statutory scheme, intervention is permitted only during the dispositional phase of a neglect proceeding, the focus of which is exclusively on the best interest of the child, which often may diverge from that of the parent, particularly when the child has lived apart from the parent for a significant period of time.29 See, e.g., In re Natalie S., 325 Conn. 833, 847, 160 A.3d 1056 (2017) (‘‘[i]t is axiomatic that, once a child has been adjudicated neglected, the dispositional decision must be based on the best interest of the child and that the interest of the child and the parent may diverge‘‘). In determining best interests, the trial court acts well within its authority to consider the stability and well-being a child has achieved in his or her current placement and the impact returning the child to a biological parent could have on the child‘s emotional, physical and psychological well-being.30 See In re Juvenile Appeal (Anonymous), supra,
177 Conn. 663 (‘‘[t]he factors to be considered in [determining whether to revoke commitment] include: (1) the length of [the child‘s] stay with her foster parents; (2) the nature of her relationship [with] her foster parents; (3) the degree of contact maintained with the natural parent; and (4) the nature of her relationship [with] her natural parent‘‘).
The foregoing discussion also answers the concern expressed in Judge Elgo‘s dissenting opinion that intervention should not be permitted at the dispositional phase because the participation of foster parents as intervenors will cause trial courts to make improper ‘‘comparisons‘’ between natural and foster parents. Part III of Judge Elgo‘s dissenting opinion. We reiterate that ‘‘[t]he parent‘s loss of custody should not . . . be premised solely on tangible material benefits to the child at the expense of the intangible, [nonmaterial] advantages [that] a parent‘s care can provide even when the parent has only limited financial resources. . . . Rather, [courts] must continue to be guided by what is best for the child‘s welfare, but . . . place the advantages of a parent‘s care high in the scale of factors conducive to that welfare. In any controversy between a parent and a stranger the parent as such should have a strong initial advantage, to be lost only [when] it is shown that the child‘s welfare plainly requires custody to be placed in the stranger.‘’ (Citation omitted; footnote omitted; internal quotation marks omitted.) In re Juvenile Appeal (Anonymous), supra, 177 Conn. 661–62.
When her opinion reaches the issue of statutory construction that is the proper subject of this appeal, Judge Elgo is left to argue that our construction of
This argument fails to confront the fact that the statutory and regulatory framework relied on by Judge Elgo existed throughout the time that foster parents enjoyed automatic standing to intervene in cases such as the present one. That framework was not perceived by the legislature prior to 2001 as a reason to deny foster parents automatic standing, and there is no indication that the same framework factored into the legislature‘s decision in 2001 to remove the right to automatic standing from
The legal obligations of foster parents identified by Judge Elgo have never been understood to prohibit foster parents from intervening to advocate for the child‘s best interest in a proceeding pursuant to
Judge Elgo‘s final two points involve concerns about delays that may be caused by permitting intervention. Again, both of these assertions are policy based as opposed to textual or strictly statutory. She contends that allowing permissive intervention in neglect proceedings could prolong the proceedings to the detriment of the child and points to the present case as an example of such a delay. See part III C of Judge Elgo‘s dissenting opinion. Again, we trust our trial courts to adhere to the directives of
The fact that a decision on the June, 2021 motion to revoke commitment was not rendered until May, 2023, had nothing to do with the foster parents’ intervention; the delay appears to have been caused by the combined effect of pandemic related court delays and the unexpected withdrawal of Berman as Jewelyette‘s counsel. Indeed, the trial court placed primary responsibility for the case‘s longevity on the department and John. No doubt there has been additional delay caused by the complications arising from the Appellate Court‘s decision in In re Ryan C., but, in fairness, responsibility for those delays cannot be attributed to the foster parents.
Relatedly, Judge Elgo suggests that our construction of
The December 11, 2023 order of the trial court removing the foster parents as intervenors is reversed in SC 21055, the writ of error in SC 21068 is granted in part and the trial court‘s November 4, 2024 revocation order is vacated, and the case is remanded for further proceedings consistent with this opinion.
In this opinion McDONALD, ALEXANDER and DANNEHY, Js., concurred.
Notes
Although
Second, and more fundamental, the commissioner‘s motion to open and modify the judgment, even if granted on a noninterim basis, did nothing more than modify the judgment on appeal for the limited purpose of transferring guardianship to John‘s sister rather than to John himself. That modification does not alter the availability of the relief sought by the foster parents here. In deciding questions of mootness, “there is a substantive distinction between opening a judgment to modify or to alter incidental terms . . . leaving the essence of the original judgment intact, and opening a judgment to set it aside. Under the latter circumstances, the original judgment necessarily has been rendered void and any appeal therefrom would be rendered moot.” RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 690, 899 A.2d 586 (2006). “[T]he appropriate question is whether the change to the judgment has affected the issue on appeal. If . . . the trial court reverses itself and resolves the matter at issue on appeal in the appellant‘s favor, it is clear that the appeal is moot as there is no further practical relief that may be afforded. . . . Conversely, if the judgment is opened to address issues entirely unrelated to the appeal, the opening of the judgment has had no effect on the availability of relief. A more difficult question may be presented if the trial court addresses the matter at issue on appeal, but does not entirely afford the appellant the relief sought. In such cases, the extent to which the trial court alters the judgment may require either a new appeal or an amended appeal,” which “is [a] fact sensitive” determination. (Citations omitted; internal quotation marks omitted.) Id., 691–92. In comparing a prior and subsequent order for purposes of determining appellate jurisdiction, practical relief remains available when an appeal challenges any portion of the prior order that was not “nullified” or “in any other way vitiated” by the subsequent order. Thunelius v. Posacki, 193 Conn. App. 666, 686 n.17, 220 A.3d 194 (2019).
The relief sought by the foster parents in this court is reversal of the November 4, 2024 order revoking commitment, restoration of their rights as intervenors, and a new revocation hearing at which they will have the opportunity to present evidence and argument concerning Jewelyette‘s best interest. If the foster parents were to prevail on appeal (as, it turns out, they do), then the foster parents are entitled to a new revocation hearing at which the necessary best interest determination is conducted with the foster parents allowed to participate in accordance with law. There are no findings in the January 23, 2025 order that nullify the trial court‘s November 4, 2024 findings concerning revocation. Because the trial court did not reverse itself with respect to revocation or otherwise resolve the issue in the foster parents’ favor, the foster parents’ claims concerning the order are not moot. See RAL Management, Inc. v. Valley View Associates, supra, 278 Conn. 691–92. It is, of course, true that John is no longer living, but that fact does not alter the legal landscape vis-a-vis the foster parents—the only change is that reversal of the order prior to John‘s death would have meant that custody of Jewelyette reverted back to the commissioner from John, whereas, now, custody would revert back to the commissioner from the aunt. Justice D‘Auria disagrees that John‘s death did not alter the relief available to the foster parents in this appeal. In his dissenting opinion, Justice D‘Auria contends that John‘s death mooted the foster parents’ claims by “irreparably chang[ing] . . . the case in which the foster parents initially sought to intervene.” In our view, as we explain more fully in footnote 30 of this opinion, Justice D‘Auria‘s position lacks both legal and factual support.