74 Conn. App. 23 | Conn. App. Ct. | 2002
Opinion
The respondent mother appeals from the denial of her motion to open and to vacate the
The following facts are necessary for the resolution of the respondent’s appeal. On October 13, 2000, the petitioner, the commissioner of the department of children and families (commissioner), filed petitions to terminate the respondent’s parental rights as to the children. The respondent was served with the petitions via publication in the New Haven Register. On November 6, 2000, the respondent was defaulted for failure to appear in court.
The trial on the termination petitions commenced on January 25, 2001, and lasted for four days. Although the respondent was not present at trial, she was represented by counsel throughout the court proceedings. On April 9, 2001, the court, in a thorough and comprehensive memorandum of decision, terminated the respondent’s parental rights as to both children. The respondent did not appeal from that decision.
On August 24, 2001, the respondent filed a motion to open and to vacate the judgments. In the motion, the respondent asserted that she never had received notice, by service or otherwise, that termination petitions had been filed by the commissioner. She also asserted that she had defenses at the time of the rendition of the judgments, “but was unable to appear to assert such defenses due to her absence . . . .” The respondent attached her affidavit to the motion in which she averred in relevant part that “my defenses regarding the termination proceeding included that I was residing with people who prevented my access to the mails or telephones, that I had been in fear of my safety, that I
Oral argument on the respondent’s motion took place on October 24, 2001. The respondent was present at the hearing on the motion to open and to vacate the judgments but did not testify. At the conclusion of the argument, the court denied the motion. The respondent then filed the present appeal.
I
The respondent first claims that the court improperly denied her motion to open the judgments as a matter of law. In support of that argument, the respondent specifically argues that she was unable to attend the termination trial due to circumstances constituting duress. The commissioner counters that the respondent failed to file her motion within four months of the termination judgments as required by General Statutes § 52-212a and that the court, therefore, properly denied the motion.
General Statutes § 52-212a
We note, however, that “[cjourts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake.” In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992). “Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.” (Internal quotation marks omitted.) Carlin Contracting Co. v. Dept. of Consumer Protection, 49 Conn. App. 501, 503, 714 A.2d 714 (1998). The issue before us is whether the court abused its discretion in refusing to open the judgments on the ground of duress. Under the circumstances of this case, we conclude that the court did not abuse its discretion in denying the motion.
In seeking to open the termination judgments, the respondent had the burden at the hearing to do more than assert an unadorned claim that due to duress, she was unable to attend the termination trial. See Housing
The record reflects that although the respondent was present at the hearing on the motion to open and to vacate the termination judgments, she did not testify, and no evidence was introduced on her behalf as to why the motion to open should be granted. Although the respondent’s affidavit, attached to the motion, indicated that she had been “residing with people who prevented [her] access to the mails or telephones,” and that she “had been in fear of [her] safety,” no evidence was offered in support of those conclusory statements.
II
The respondent next claims that the court improperly found that service of process by publication was sufficient in this case. We disagree.
The respondent was served with the petitions for termination of parental rights via publication in the New Haven Register. Such service is permissible at least ten days before the date of the hearing in situations in which the respondent’s whereabouts are unknown. General Statutes § 45a-716 (c).
At the commencement of trial, counsel for the respondent admitted that he had sent letters to the respondent, but that he had not seen her since October, 1999. According to the respondent’s affidavit, attached to the motion to open, she left Connecticut in April, 2000, and did not return until July, 2001.
We recognize that “[n]otice by publication, although sometimes necessary, is not the preferred method for assuring full participation in so significant an impairment of constitutionally protected parental rights.” In re Baby Girl B., supra, 224 Conn. 295. In the present
At a conference prior to the commencement of trial, counsel for the respondent inquired whether an attorney or guardian ad litem should be appointed to do a diligent search for the respondent. In response, the court expressed its views about how the respondent had been given chances to engage in services and then had disappeared.
Ill
The respondent next claims that the court improperly acted on the motion to open. The respondent argues that the court, having presided over the trial at which the respondent was not present, was unable objectively to decide the motion to open, and, therefore, it should have been referred to another judge. We disagree.
The respondent did not file a motion for disqualification of the trial judge prior to or during the argument on the motion to open. “It is a well settled general rule that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the
The judgments are affirmed.
In this opinion the other judges concurred.
The court also terminated the parental rights of the respondent fathers of each of the children. Because neither father has appealed, we refer in this opinion to the respondent mother as the respondent.
The commissioner points out that the respondent’s reliance on General Statutes § 52-212 to support the opening of the termination judgments is inaccurate, as § 52-212 refers to the opening of a default judgment. The commissioner further contends that although the respondent was defaulted, the termination judgments were rendered after a contested four day trial in which the respondent was represented by counsel. The commissioner argues, therefore, that the applicable statute is General Statutes § 52-212a. We note, however, that both §§ 52-212 and 52-212a contain the requirement that a motion to open be filed within four months of the date on which judgment is rendered or passed.
See footnote 2.
The commissioner contends that because she did not waive or consent to the waiver of the four month time limit, the court was without jurisdiction to grant the requested relief. In Kim v. Magnotta, 249 Conn. 94, 102-103, 733 A.2d 809 (1999), our Supreme Court held, however, that General Statutes § 52-212a acts “as a limitation on the trial court’s general authority to grant relief from a judgment, not as a limitation on its personal jurisdiction over the parties.”
We recognize that Lamothe and Jenks involved stipulated judgments in which the motion to open was filed within four months.
The commissioner correctly pointed out during oral argument on the motion to open that “the supporting affidavit that was prepared by the mother, does not in any way, shape or form explain why she wasn’t able to even make a phone call to anybody, not to her mother, not to [the department of children and families], not to a cousin. . . .
“The mother fails in her affidavit to indicate what her defenses might be to a termination of parental rights. She also fails to identify how she was prevented from returning to the state of Connecticut. She doesn’t indicate why she was able to come back to the state of Connecticut in April of 2000. And I believe that was when the social worker testified that she offered the mother assistance. And then the mother disappeared again.”
The court questioned counsel for the respondent as to whether the respondent had sought assistance during the alleged time of duress, and the response was that she had not. The following colloquy, in relevant part, occurred between the court and the respondent’s counsel:
“The Court: Did your client ever ask law enforcement for help? Did she ever ask for the witness protection program? Did she ever [ask] to be taken
“[Respondent’s Counsel]: I don’t believe that she did, Your Honor.”
The respondent raises two additional arguments in support of her claim that the court improperly denied her motion to open. She first argues that the court, at trial, improperly struck the cross-examination testimony of a department of children and families worker who possessed knowledge that the respondent was being held against her will. As to that claim, we note that the issue presently before this court is whether the trial court properly denied the respondent’s motion to open in the absence of any evidence to support her claim of duress. Evidentiary rulings made during the course of the underlying termination proceedings, on which no appeal was taken, are not properly before this court.
The respondent also argues that the court improperly relied on the best interest of the child standard in denying the motion to open. With regard to that claim, we simply refer to General Statutes § 45a-719, which provides in relevant part: “The court may grant a motion to open or set aside a judgment terminating parental rights pursuant to section 52-212 or 52-212a or pursuant to common law or may grant a petition for a new trial on the issue of the termination of parental rights, provided the court shall consider the best interest of the child, except that no such motion or petition may be granted if a final decree of adoption has been issued prior to the filing of any such motion or petition. . . .” (Emphasis added.)
General Statutes § 45a-716 (c) provides in relevant part: “If the address of any person entitled to personal service or service at the person’s usual place of abode is unknown, or if personal service or service at the person’s usual place of abode cannot be reasonably effected within the state or if any person enumerated in subsection (b) of this section is out of the state, a judge or clerk of the court shall order notice to be given by registered or
The court stated in part that “[t]his isn’t a situation where she wasn’t aware of what’s going on. You know, it’s not a situation where there’s a real question of whether she ever knew that she was the mother of these children, which is often the case when it’s the father. They tried to engage her in services, she didn’t want to know about it. . . . She has chosen not to be involved in these children’s lives, and she has, you know, chosen not to take advantage of services that were offered. It’s not something where I feel as though we omitted anything. She doesn’t want to be found, my guess is.”