Case Information
*1 ******************************************************
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IN RE NATALIE J.* (AC 35785) Beach, Alvord and Pellegrino, Js.
Argued October 23, 2013—officially released January 29, 2014** (Appeal from Superior Court, judicial district of New
Britain, Juvenile Matters, Gleeson, J. [neglect adjudication; transfer of guardianship]; T. Santos, J.
[motion to open]; Frazzini, J. [motion for revocation of
commitment; judgment of dismissal].) Angela Christine J. , self-represented, the appellant
(respondent mother).
Carolyn Signorelli , assistant attorney general, with whom, on the brief, were George Jepsen , attorney gen- eral, and Benjamin Zivyon , assistant attorney general, for the appellee (petitioner).
Elizabeth Potts Berman , for the minor child. Robert W. Lewonka , for the guardian ad litem. *3 Opinion
BEACH, J. The respondent mother, Angela J., appeals [1] from the judgment of the trial court granting the motion of the petitioner, the Commissioner of Chil- dren and Families, to dismiss her motion to revoke the commitment of her minor child, Natalie J. On appeal, Angela J. argues that the trial court: (1) improperly granted the petitioner’s motion to dismiss her motion to revoke commitment on the ground that she failed to establish a prima facie case; (2) abused its discretion by taking judicial notice of the September 15, 2011 social study that was prepared by the Department of Children and Families (department) and entered as a full exhibit during the December 22, 2011 hearing on the neglect petition; (3) abused its discretion by taking judicial notice of, rather than admitting as a full exhibit, Angela J.’s response to the petitioner’s summary of facts substantiating neglect; and (4) abused its discretion by excluding a tape recording of a telephone conversation between Angela J. and Natalie that allegedly took place on May 14, 2012. We disagree and affirm the judgment of the trial court.
The following facts are relevant to this appeal. On August 4, 2011, after receiving a referral suggesting physical and emotional neglect of fourteen year old Natalie from the Connecticut Children’s Medical Center (medical center), the petitioner sought and was granted an order of temporary custody. In support of its motion for that order, the petitioner submitted an affidavit pre- pared by Dr. Nina Livingston, the medical director of Hartford Regional Child Abuse Services at the medical center. [2] The petitioner also filed a neglect petition and an affidavit seeking out-of-home placement of Natalie. [3] Along with the neglect petition, the petitioner filed a summary of facts substantiating neglect. Angela J. did not file a response to the petitioner’s summary of facts substantiating neglect until eight months after the hear- ing on the neglect petition.
A preliminary hearing on the order of temporary cus- tody was scheduled for August 12, 2011. At the prelimi- nary hearing, at which Angela J. failed to appear, the court ordered specific steps including, but not limited to, Angela J. and her husband Christopher J., Natalie’s father, accepting in-home support services recom- mended by the petitioner, participating in individual counseling and separate psychological evaluations, and cooperating with Natalie’s therapy, as recommended by the department.
A full hearing on the petitioner’s neglect petition was scheduled for September 15, 2011. Angela J. was not present at that hearing and the court accordingly entered a default judgment.
On December 22, 2011, the court adjudicated Natalie neglected and found that it was in her best interest to *4 be committed to the care and custody of the petitioner. The court also granted an order of out-of-state place- ment pursuant to an approved interstate compact study regarding Natalie’s maternal grandmother, Jacqueline S. In making its decision, the court considered: (1) the default judgments entered against Angela J. and Chris- topher J. [6] for failure to appear; and (2) a social study prepared by the department, dated September 15, 2011, (social study), which was filed with the court as a full exhibit. [7]
According to the social study, Angela J. began experi- encing mental health issues, including symptoms of paranoia, when she was terminated from her place of employment. [8] Department social workers reported that Natalie suffered from severe acne, for which Angela J. instructed her not to take prescribed medication, risk- ing permanent scarring. Department social workers noted that Natalie had no history of psychiatric treat- ment; however, she presented as ‘‘very anxious’’ and suspicious of people in authority and struggled with socializing with her peers and others. The report indi- cated that Natalie was diagnosed with anxiety disorder as a result of continued exposure to Angela J.’s delu- sions and insistence that people were following her, watching her, and trying to kill her.
On June 21, 2012, the court approved a permanency plan contemplating the transfer of guardianship of Nata- lie to Jacqueline S. On June 28, 2012, Angela J. filed an appearance as a self-represented party. On July 19, 2012, Angela J. appeared at the New Britain juvenile court. She filed a number of documents, including a motion to open the December 22, 2011 judgment of neglect, a motion to reconsider the denial of her motion to open judgment, and a petition for a new trial, all of which were denied. On August 15, 2012, eight months after the neglect hearing, Angela J. submitted her response to the petitioner’s summary of facts substantiating neglect.
On March 20, 2013, the petitioner filed a required motion for review of permanency plan. The petitioner filed a permanency plan contemplating the transfer of guardianship of Natalie to Jacqueline S., with whom she had been residing since December, 2011.
On May 8, 2013, Angela J. filed a ‘‘motion to reinstate guardianship’’ to her, which is the subject of this appeal. The court and all parties agreed that the motion would be treated as a motion to revoke commitment and the court scheduled an evidentiary hearing for June 10, 2013. On May 23, 2013, the court ordered that the motion be heard in a bifurcated manner: the court would consider first whether the cause for commitment no longer existed, and later, if necessary, whether revo- cation of commitment was in the best interests of the child. [11]
At the June 10, 2013 evidentiary hearing, the court *5 took judicial notice of all pleadings in the file including, but not limited to, Angela J.’s response to the petition- er’s summary of facts substantiating neglect filed on August 15, 2012, the September 15, 2011 social study entered as an exhibit at the hearing on the neglect petition, and the motion for review of permanency plan and social study filed on May 17, 2012. The court reminded all parties that the subject of the hearing was a motion for revocation of commitment and that the purpose of the hearing was whether the cause for com- mitment still existed. The court explained to Angela J. that, as a result of the default judgment previously entered following her failure to appear, the facts con- tained in the neglect petition regarding her mental health and its emotional and physical impact upon her child were taken to be true and could not be challenged. The court explained that all Angela J. could currently do was to show that the circumstances that existed in 2011 no longer existed. [13]
At the outset of the presentation of her case, Angela J., representing herself, attempted to introduce a tape recording of a telephone conversation between herself and Natalie that occurred on May 14, 2012. The court requested an offer of proof. At the close of Angela J.’s description of the content of the tape recording, both counsel for Natalie and counsel for the petitioner objected on the grounds that the evidence proffered was hearsay and not relevant to the issue of whether cause for commitment no longer existed. The court sustained the objection to the introduction of the tape recording.
Angela J. then attempted to introduce her response to the petitioner’s summary of facts substantiating neglect, filed on August 15, 2012 (response to summary of facts), as a full exhibit. The court sustained the petitioner’s objection on relevancy grounds but explained that it would ‘‘take judicial notice of [it] just like I did all other matters that were filed . . . .’’
Angela J. also attempted to introduce a letter written by Natalie in September, 2010, and a math exercise completed by Natalie in October, 2010. The court sus- tained the petitioner’s objections on relevancy grounds, explaining that the documents did not provide insight into the current status of the parties.
Other evidence offered by Angela J. included her own testimony and that of her husband, Christopher J., regarding their opinion that there was no basis for the initial adjudication of neglect and commitment of Natalie because Angela J. had never been told that she suffered from mental health issues. They further main- tained that the adjudicating court improperly had relied upon the pleadings and social study because the parents were not present at the hearings to refute the allegations contained in those documents.
At the close of Angela J.’s presentation of evidence,
counsel for the petitioner, joined by counsel for Natalie,
moved to dismiss the motion for revocation of commit-
ment based on Angela J.’s failure to make out a prima
facie case for the proposition that the cause for commit-
ment no longer existed. In response to the petitioner’s
motion to dismiss, Angela J. argued that the holding of
Suprenant
v.
Commissioner of Welfare
, 21 Conn. Supp.
154,
I Angela J.’s first claim is that the trial court improperly granted the petitioner’s motion to dismiss for failure to make out a prima facie case for revocation of commit- ment of Natalie. We disagree.
General Statutes § 46b-129 (m) provides: ‘‘The com-
missioner, a parent or the child’s attorney may file a
motion to revoke a commitment, and, upon finding that
[1] cause for commitment no longer exists, and [2] that
such revocation is in the best interests of such child
or youth, the court may revoke the commitment of such
child or youth. No such motion shall be filed more often
than once every six months.’’ This court’s analysis in
In re Stacy G.
,
Practice Book § 15-8 provides in relevant part: ‘‘If,
on the trial of any issue of fact in a civil matter tried
to the court, the plaintiff has produced evidence and
rested, a defendant may move for judgment of dismissal,
and the judicial authority may grant such motion if the
plaintiff has failed to make out a prima facie case.’’ See
*7
Practice Book § 34a-1 (b); see also
In re Devon W.
, 124
Conn. App. 631, 639–41,
‘‘The standard for determining whether the plaintiff
has made out a prima facie case, under Practice Book
§ 15-8, is whether the plaintiff put forth sufficient evi-
dence that,
if believed
, would establish a prima facie
case, not whether the trier of fact believes it. . . . For
the court to grant the motion [for judgment of dismissal
pursuant to Practice Book § 15-8], it must be of the
opinion that the plaintiff has failed to make out a prima
facie case. In testing the sufficiency of the evidence,
the court compares the evidence with the allegations
of the complaint. . . . In order to establish a prima
facie case, the proponent must submit evidence which,
if credited, is sufficient to establish the fact or facts
which it is adduced to prove.
.
.
. [T]he evidence
offered by the plaintiff is to be taken as true and inter-
preted in the light most favorable to [the plaintiff], and
every reasonable inference is to be drawn in [the plain-
tiff’s] favor. . . . Whether the plaintiff has established
a prima facie case is a question of law, over which
our review is plenary.’’ (Citation omitted; emphasis in
original; footnote omitted; internal quotation marks
omitted.) C
harter Oak Lending Group, LLC
v.
August
,
Our thorough review of the transcript of the June 10, 2013 hearing indicates that Angela J. failed to introduce any evidence that, if credited, would make out a prima facie case that the cause for commitment no longer exists. Angela J. did not present any new evidence regarding the current state of her mental health issues, as of June, 2013, or whether she was currently able to provide care for Natalie without subjecting her to the emotional, psychological, educational, physical and medical neglect described in the social study. A princi- pal claim Angela J. made at the June 10, 2013 hearing was that she had never been told she had any mental health issues. After a thorough review of the record, we conclude the trial court properly granted the peti- tioner’s motion to dismiss.
II Angela J.’s claims regarding evidentiary rulings must be viewed in the context of the proceedings. Evidence that may perhaps have been relevant in a hearing on a motion for a finding of neglect is not necessarily rele- vant in a hearing on a motion to revoke commitment, where the issue is not whether cause for commitment once existed but rather, as discussed earlier in this opinion, whether the cause previously found no longer exists. Here, the court’s evidentiary rulings recognized and relied upon this distinction. With this principle in mind, we turn to the distinct evidentiary rulings that *8 on appeal are claimed to be erroneous. [16]
A Angela J.’s first evidentiary claim is that the court improperly took judicial notice of the social study. She claims that the social study was inaccurate and that the court was wrong to rely on it during the revocation of commitment hearing because she was not present at the December 22, 2011 hearing on the neglect petition when the social study was admitted into evidence, and therefore was unable to refute the assertions contained in the social study. We disagree.
The following additional facts are relevant. At the June 10, 2013 evidentiary hearing on the motion to revoke commitment, the court took judicial notice of several documents, including the social study. The court provided Angela J. an opportunity to be heard before taking judicial notice of the social study. The court then explained its ruling. It stated that judicial notice of the social study was proper because the social study was admitted as a full exhibit during the neglect adjudication hearing and, in large part, was the factual basis the court relied on in adjudicating Natalie neglected and in determining that commitment was in Natalie’s best interest.
Section 2-1 of the Connecticut Code of Evidence pro-
vides in relevant part: ‘‘A court may, but is not required
to, take judicial notice of matters of fact . . . . A judi-
cially noticed fact must be one not subject to reasonable
dispute in that it is either (1) within the knowledge
of people generally in the ordinary course of human
experience, or (2) generally accepted as true and capa-
ble of ready and unquestionable demonstration.’’ In
determining whether a matter is the proper type for
judicial notice, courts have ‘‘attempted to draw a line
between matters susceptible of explanation or contra-
diction, of which notice should not be taken without
giving the affected party an opportunity to be heard
[18]
. . . and matters of established fact, the accuracy of
which cannot be questioned, such as court files, which
may be judicially noticed without affording a hearing.’’
(Footnote added; internal quotation marks omitted.)
Wasson
v.
Wasson
,
‘‘A trial court’s determination as to whether to take
judicial notice is essentially an evidentiary ruling, sub-
ject to an abuse of discretion standard of review. . . .
In order to establish reversible error, the defendant
must prove both an abuse of discretion and a harm that
resulted from such abuse.’’ (Citation omitted; internal
quotation marks omitted.) Id., 157–58. In reviewing
a trial court’s evidentiary ruling, ‘‘the question is not
whether any one of us, had we been sitting as the trial
judge, would have exercised our discretion differently
. . . . Rather, our inquiry is limited to whether the trial
*9
court’s ruling was arbitrary or unreasonable.’’ (Citation
omitted; internal quotation marks omitted.)
State
v.
Cancel
,
Child protection proceedings are civil matters. See
Practice Book § 32a-2 (a). In civil matters ‘‘[t]he entry
of a default constitutes an admission by the defendant
of the truth of the facts alleged in the complaint.’’
DeBlasio
v.
Aetna Life & Casualty Co.
,
B Angela J. also claims that the court abused its discre- tion in taking judicial notice of her response to the petitioner’s summary of facts substantiating neglect rather than admitting it as a full exhibit. The petitioner argues that the court properly excluded Angela J.’s response to summary of facts as a full exhibit because it was not relevant to the revocation of commitment proceeding. We agree that the court did not abuse its discretion in taking judicial notice of Angela J.’s response to summary of facts and not admitting it as a full exhibit.
First, it quite clearly was proper for the court to take
judicial notice of a prior pleading, at least for the fact
*10
of what was filed. Whether information within the docu-
ment had substantive evidential value is a different
question. Relevant evidence is evidence that has ‘‘any
tendency to make the existence of any fact that is
mate-
rial to the determination of the proceeding
more proba-
ble or less probable than it would be without the
evidence.’’ (Emphasis added.) Conn. Code Evid. § 4-1.
Relevant evidence is admissible unless otherwise pro-
vided. Conn. Code Evid. § 4-2. The trial court has broad
discretion in ruling on the admissibility of evidence.
The trial court’s ruling on evidentiary matters will be
overturned only upon a showing of a clear abuse of the
court’s discretion and a showing that the ruling resulted
in ‘‘substantial prejudice or injustice.’’ (Internal quota-
tion marks omitted.)
In re Angellica W
., 49 Conn. App.
541, 550,
Practice Book § 34a-14 provides that within thirty days of the filing of a neglect petition, a parent, legal guardian or child may file a response to the summary of facts propounded by the petitioner in order to assert that allegations contained in the summary of facts in support of the petition are ‘‘irrelevant, immaterial, false or otherwise improper.’’
The following additional facts are relevant. On August 4, 2011, the petitioner filed a neglect petition as well as a summary of facts in support of the neglect petition. On December 22, 2011, the court adjudicated Natalie neglected. On August 15, 2012, more than one year after the plea date on the neglect petition and eight months after the finding of neglect, Angela J. submitted her response to summary of facts. Angela J.’s response to summary of facts broadly denied the allegations in the neglect petition as well as the allegations in the petition- er’s summary of facts substantiating neglect. At the June 10, 2013 hearing on the motion to revoke commitment, Angela J. requested the court to take judicial notice of her response to summary of facts.
We conclude that the court did not abuse its discre- tion in declining to admit Angela J.’s response to sum- mary of facts as a full exhibit. First, there is no clear indication in the record that Angela J. sought to have the document admitted as a full exhibit at the June 10, 2013 revocation of commitment hearing. Second, even if Angela J.’s goal was admission of the document as a full exhibit, the court did not abuse its discretion in failing to admit it as a full exhibit because the document, which addresses factual circumstances in 2011, was not relevant to the issue to be decided in the revocation of commitment hearing—that is, whether the circum- stances as they were in June, 2013, warranted a finding that the previously determined and finally established cause for commitment no longer existed. We therefore conclude that the court did not abuse its discretion in taking judicial notice of Angela J.’s response to sum- mary of facts. [22]
C Angela J. finally claims that the trial court abused its discretion by excluding a tape-recorded telephone conversation between Angela J. and Natalie. We disagree.
‘‘The trial court’s ruling on the admissibility of evi-
dence is entitled to great deference. . . . [T]he trial
court has broad discretion in ruling on the admissibility
. . . of evidence . . . [and its] ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest abuse
of discretion.’’ (Internal quotation marks omitted.)
In
re Harlow P.
,
Relevant evidence is evidence that has ‘‘any tendency
to make the existence of any fact that is
material to
the determination of the proceeding
more probable or
less probable than it would be without the evidence.’’
(Emphasis added.) Conn. Code Evid. § 4-1; see also
In
re Angellica W
., supra,
One means of suggesting relevance is an offer of
proof. Courts are permitted to base their decisions
regarding the relevance and admissibility of evidence
on the offer of proof and argument made by the propo-
nent of the evidence. ‘‘An offer of proof, properly pre-
sented, serves three purposes. First, it should inform
the court of the legal theory under which the offered
evidence is admissible. Second, it should inform the
trial judge of the specific nature of the offered evidence
so the court can judge its admissibility. Third, it thereby
creates a record adequate for appellate review.’’ (Inter-
nal quotation marks omitted.)
State
v.
Conrod
, 198
Conn. 592, 597,
The following additional facts are relevant. At the June 10, 2013 evidentiary hearing on her motion to revoke commitment, Angela J. attempted to introduce a tape recording of a telephone conversation between her and Natalie. When the court asked Angela J. to provide a foundation, she insisted that she should be *12 able to play the tape recording without further explana- tion. The petitioner, through counsel, requested an offer of proof as to the nature of the recording, when it was made, and to whom and to what it referred, and an explanation of how it was relevant to the revocation of commitment proceeding. In response, Angela J. explained that it was a tape recording of a telephone conversation between herself and Natalie on May 14, 2012, during which Natalie told her that her attorney had her sign papers without reading them, that she was repeatedly asked by her attorney, school officials, the petitioner, workers, and others whether she ever ran away from home and that she told them she had not run away, and that when Angela J. appeared in the street outside her residential placement, staff told her to hide. [23]
Subsequently, Natalie’s counsel objected, arguing that the offer of proof was insufficient, that the tape recording of the telephone conversation was irrelevant to the revocation of commitment hearing, and that it was inadmissible hearsay. The petitioner also objected on the same grounds, maintaining that there was no representation that the material contained in the tape- recorded conversation was relevant to the issue before the court at the revocation hearing. Angela J. responded to the relevancy objection by stating that the tape recording tended to show that Natalie had been ‘‘brain- washed’’ into believing that she was not safe with her parents. She then began to testify about facts and allega- tions outside the contents of the tape recording. When the court asked Angela J. to explain how the contents of the tape recording were relevant to the issue of whether cause for commitment still existed, Angela J. responded by stating that the social workers were untruthful and reiterated her claim that the factual infor- mation introduced at the December 22, 2011 neglect adjudication hearing was not reliable and was not truth- ful. The court sustained the objection on the grounds that the offer of proof did not address how the tape recording was relevant to Angela J.’s burden of estab- lishing that the cause for commitment no longer existed. Angela J. claims the court abused its discretion in excluding the tape recording. We disagree.
After a thorough review of the record, we conclude that there is no indication that the tape recording con- tained evidence relevant to the issue before the court at the revocation hearing. The court, therefore, did not abuse its discretion in excluding the tape recording of the alleged May 14, 2012 telephone conversation between Angela J. and Natalie. Accordingly, we do not conclude that the court erred in dismissing Angela J.’s motion to revoke commitment.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
*13
(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 Appellate Court.
** January 29, 2014, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
[1]
The respondent father, Christopher J., is not a party to this appeal.
[2]
According to Livingston’s affidavit, on August 1, 2011, Natalie presented
at the emergency department because of Angela J.’s persistent concerns
that Natalie had been poisoned. Medical tests revealed that Natalie had not
been poisoned; however, she was admitted for further evaluation. Angela
J. and her husband Christopher J., Natalie’s father, attempted to leave with
Natalie against medical advice. Livingston attempted to speak with Natalie
privately, but Angela J. refused to allow Livingston to speak with Natalie
without her being present. Livingston also reported that Angela J. refused
to allow her to order a mental health assessment for Natalie.
On August 3, 2011, Livingston was able to speak with Natalie, separate
from Angela J., in the presence of an advanced practice registered nurse.
Natalie reported to Livingston that Angela J. tells her that ‘‘people are trying
to poison them, that schools are putting [Natalie] in the wrong classes, and
that teachers are telling the kids in [Natalie’s] school to say negative things
to her. Natalie report[ed] that sometimes she believes that people are watch-
ing or following her and it makes her scared and nervous. . . . Sometimes
she does not believe the things [Angela J.] says and is bothered by [Angela
J.’s] persistent discussion of the games.’’ Natalie also reported that Angela
J. ‘‘will not separate from her except for school and occasionally to leave
her with [maternal grandmother].’’ Natalie also told Livingston that she did
not participate in any extracurricular activities, had no friends, and no
regular contact with anyone aside from her parents. A psychological evalua-
tion on August 3, 2011, revealed that Natalie suffered from social anxiety
disorder and pervasive developmental disorder, and that she struggled to
separate Angela J.’s delusions from reality.
[3]
The affidavit seeking out-of-home placement of Natalie stated: ‘‘[C]ontin-
uation in the home is contrary to the welfare of the child because . . .
[Angela J.’s] mental health impacts her ability to care for [Natalie]. [Christo-
pher J.] has failed to protect [Natalie] from [Angela J.’s] mental health
problems. [Natalie] has been emotionally and physically impacted by parent’s
actions and statements.’’ The affidavit also stated that the department had
made reasonable efforts to keep Natalie in the home prior to seeking an
out-of-home placement, including offering safety planning and psychological
evaluation services to both parents.
[4]
The summary of facts substantiating neglect alleged, in part: (1) ‘‘[f]or
at least the past two years, [Angela J.] has had paranoid beliefs that have
included that the family is being followed and harassed, primarily by [Nata-
lie’s] school systems’’; (2) ‘‘[Christopher J.] has failed to protect [Natalie]
from [Angela J.’s] paranoid actions and statements in that he continues to
allow [Natalie] to be exposed to [Angela J. and subject to Angela J.’s actions
and statements]’’; (3) ‘‘in the past two years, the family has moved to three
different states in part due to [Angela J.’s] beliefs [that] they were being
targeted and potentially poisoned . . . by various school systems’’; (4) ‘‘[a]s
a result of the parents’ actions and statements, [Natalie] has been subjected
to unnecessary medical examinations, and undue stress and anxiety about
her participation in school, and social activities’’; and (5) ‘‘[Angela J.’s]
mental health impacts her ability to appropriately care for [Natalie].’’
[5]
Angela J. did not appear at the court hearings regarding the order for
temporary custody and the neglect petition scheduled during August and
September of 2011. The trial court found proper service upon Angela J. and
that she had notice of the results of each of those hearings.
[6]
On December 22, 2012, a default was entered against Christopher J. for
failure to appear.
[7]
Angela J. and Christopher J. failed to comply with the petitioner’s
requests throughout the investigation by refusing to meet with department
workers, refusing visitation time with Natalie, and refusing to participate
in the social study.
workers obtained information about Angela J. from her mother, Jacqueline
Angela J. refused to participate in the social study. Department social
S., who reported that Angela J.’s mental health issues began when she was
terminated from her job and continued and remained untreated.
Pursuant to Practice Book § 35a-14 (f), the petitioner is required to file
a permanency plan with the court every twelve months while a child is in
*14
foster care. Under Practice Book § 35a-14 (c), a person who objects to the
plan that the petitioner has presented has thirty days in which to file a
written objection. If a written objection is filed within the thirty day period,
the court must schedule an evidentiary hearing to consider the plan. If no
written objection is filed within the thirty day time period, the court may
consider and approve or disapprove the plan on the basis of the social study
and the arguments of the parties on the date of the scheduled hearing on
the motion for review.
Practice Book § 35a-16 requires that ‘‘any modification motion to return
the child to the custody of the parent without protective supervision shall
be treated as a motion for revocation of commitment.’’
Pursuant to General Statutes § 46b-129 (m), a court ruling on a motion
for revocation of commitment must consider two issues: (1) whether cause
for commitment no longer exists; and (2) whether revocation of commitment
is in the best interests of the child.
The court explained: ‘‘As I said to you last week, this does not provide
a party a chance to have a retrial on the issues that led to commitment.
There was a judicial finding that the child was neglected. There was a judicial
decision to commit the child to the [petitioner]. There was an opportunity to
contest that—the petition. And the petition was not contested and defaults
were entered.
‘‘A default is regarded as allowing the petition for the pleading to be
presumed as true and the court treated it that way and was based on the
neglect petition and the addendum that was incorporated into the original
neglect petition was thereby presumed to be true.
‘‘And you can’t—today you can’t offer evidence or try to challenge that
the facts that the judge found back when the child was committed weren’t
then true. What your—the burden of proof you face today is to show that
whatever the circumstances were when the child was found neglected and
committed, there are difference circumstances today such that today there’s
no longer a cause for commitment.’’
The court explained to Angela J. that ‘‘it’s too late to challenge whether
[the facts in the neglect petition, taken to be true because there was a
default judgment] were true back in 2011. All you can try to do now is show
that whatever the circumstances were in 2011, those circumstances no
longer exist.’’
That decision, of course, had become final and the appeal period had
expired.
Angela J.’s reliance on this nonbinding Superior Court case is unavailing.
In
Suprenant
v.
Commissioner of Welfare
, supra,