AC 23919 | Conn. App. Ct. | Jan 6, 2004
The respondent mother appeals from the denial of her motion to open the judgments of voluntary termination of her parental rights with respect to her two minor children.
The respondent and her two minor children have a history of involvement with the department of children and families (department) dating back to 1995. Due to the respondent’s substance abuse, criminal history and instances of domestic violence with her husband, the children have been in foster care since approximately January, 1998, and in foster care with their maternal aunt and uncle since February, 2001.
On September 27, 2000, the petitioner, the commissioner of children and families (commissioner), filed termination of parental rights petitions against the respondent with respect to the children.
Consequently, the court entered termination orders, and the department initiated adoption efforts. The children’s aunt and uncle, with whom the children currently reside, expressed interest in adopting them and initiated adoption efforts soon after the entry of the termination judgments. The relevant paperwork had been prepared and the adoption process was underway when, on February 7, 2002, the process was halted when the respondent, acting pro se, filed a motion to open the judgments terminating her parental rights.
The respondent filed the motion to open the judgments pursuant to General Statutes § 45a-719,
“Our review of a court’s denial of a motion to open . . . is well settled. We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. ... In
I
The respondent first claims that the court improperly denied her motion to open because the evidence demonstrated that she was under duress when she provided consent to the termination of her parental rights. We disagree.
“For a party to demonstrate duress, it must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim. . . . The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will.” (Citation omitted; internal quotation marks omitted.) Noble v. White, 66 Conn. App. 54" court="Conn. App. Ct." date_filed="2001-10-02" href="https://app.midpage.ai/document/noble-v-white-7860066?utm_source=webapp" opinion_id="7860066">66 Conn. App. 54, 59, 783 A.2d 1145 (2001).
A motion to open grounded on duress necessarily requires a court to make factual determinations with respect to the elements of duress and, therefore, any allegation of duress must be accompanied by supporting evidence, either documentary or testimonial, on which such factual determinations can rest. See In re Salvatore P., 74 Conn. App. 23" court="Conn. App. Ct." date_filed="2002-12-10" href="https://app.midpage.ai/document/in-re-salvatore-p-7860881?utm_source=webapp" opinion_id="7860881">74 Conn. App. 23, 28, 812 A.2d 70 (2002), cert. denied, 262 Conn. 934" court="Conn." date_filed="2003-01-09" href="https://app.midpage.ai/document/in-re-salvatore-p-9328024?utm_source=webapp" opinion_id="9328024">262 Conn. 934, 815 A.2d 135" court="Conn." date_filed="2003-01-09" href="https://app.midpage.ai/document/state-v-mcfadden-9328018?utm_source=webapp" opinion_id="9328018">815 A.2d 135, cert. denied
The court found that the respondent had failed to establish the existence of a wrongful act or threat, the effect of which was to compel her to consent to the termination of her parental rights. In reaching that conclusion, the court considered testimony adduced during the hearing as to the content of and circumstances surrounding the respondent’s encounter with Wood on the second day of the termination proceedings.
The respondent testified that Wood had approached her in the hallway of the courthouse where she was standing with her husband and threatened that if she did not consent to the termination, the department would prevent her from seeing the children again and that the department also would initiate termination proceedings against the respondent’s newborn child. The respondent testified that Wood’s threat induced her to consent to the termination.
Contrary to the respondent’s rendition of the encounter, Wood testified that she did not initiate a discussion with the respondent, but instead was approached by the respondent and the respondent’s husband, and asked about the department’s plans with respect to the newborn.
After considering those conflicting versions of the encounter, the court found as follows: “The court fully credits Ms. Wood’s testimony that she did not seek [the respondent’s] consent in exchange for not taking action with regard to [the newborn] and that she did not offer to withhold action on [the newborn] if [the respondent] consented to [the] termination [of her parental rights as to the other two children].” The court also stated: “There simply was no threat that [the newborn] would be removed if [the respondent] did not consent, and there was no threat that [the other two children] would be removed from [their aunt’s and uncle’s] care and separated if [the respondent] did not consent.”
As stated previously, “[t]he trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... We cannot retry the facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Noble v. White, supra, 66 Conn. App. 60.
Although Wood and the respondent offered conflicting testimony, the court was entitled to credit Wood’s
We recognize that for many parents, the circumstances surrounding a termination of parental rights proceeding are likely to be enormously stressful and emotional. It is important to underscore, however, that analysis of duress claims focuses not simply on the question of whether the victimfelt coerced to undertake a particular action, but on whether the act or threat underlying the coercion was wrongful. See 25 Am. Jur. 2d 511, Duress and Undue Influence § 3 (1996). Even if the respondent felt coerced to provide her consent to the termination of her parental rights, such state of mind was not induced, given the findings of the court, by any wrongful acts or threats by Wood.
We conclude that the evidence adequately supported the court’s determination that the respondent had failed to demonstrate a wrongful act or threat and, therefore,
II
The respondent next claims that the court improperly found that it was in the best interests of the children to deny the motion to open. We disagree.
As stated previously, § 45a-719 provides in relevant part that “[t]he court may grant a motion to open . . . a judgment terminating parental rights . . . provided the court shall consider the best interest of the child . . . .”
A review of the evidence reveals that the court’s finding as to the best interests of the children was amply
We conclude, therefore, that the court’s determination that the best interest analysis weighed strongly in favor of denying the motion to open the judgments was more than adequately supported by the evidence.
The judgments are affirmed.
In this opinion the other judges concurred.
The trial court also terminated the parental rights of the respondent’s husband, the biological father of both of the children, but because the father was not a party to the motion to open, we refer in this opinion to the respondent mother as the respondent.
The termination petitions were premised on the two children having been adjudicated, in a prior proceeding, neglected or uncared for, and the failure of the respondent and her husband to achieve such a degree of personal rehabilitation as would encourage the belief that she could assume a responsible position in the lives of the children. See General Statutes § 46b-129 (b) and General Statutes (Rev. to 1999) § 17a-112 (c), now (j).
General Statutes § 45a-719 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. . .
As of the date the motion to open was filed, a final decree of adoption had not been rendered.
On March 5, 2002, prior to the court hearing evidence on the motion to open, the department filed a motion to dismiss, premised on the contention that the court lacked personal jurisdiction to entertain the motion to open because that motion had not been filed within four months after the termination order, as required by General Statutes § 52-212a. The court denied the motion to dismiss on June 13, 2002, on the ground that the four month limitation period set forth in § 52-212a does not preclude a common-law motion to open predicated on fraud, duress or mutual mistake. See, e.g., In re Jonathan M., 255 Conn. 208" court="Conn." date_filed="2001-01-16" href="https://app.midpage.ai/document/in-re-jonathan-m-7846879?utm_source=webapp" opinion_id="7846879">255 Conn. 208, 238, 764 A.2d 739 (2001); Solomon v. Keiser, 22 Conn. App. 424, 427, 577 A.2d 1103" court="Conn. App. Ct." date_filed="1990-07-24" href="https://app.midpage.ai/document/solomon-v-keiser-7853840?utm_source=webapp" opinion_id="7853840">577 A.2d 1103 (1990).
The respondent sets forth a third claim on appeal, alleging that the court improperly concluded that her husband did not recall who approached whom in the hallway of the courthouse and initiated the conversation about the children. A review of the husband’s testimony reveals that his recollection of who initiated the conversation was not directly explored because, during direct examination, counsel interrupted the husband during his attempt to describe the encounter and did not return to the issue at a later time. Also, to the limited extent that the record discloses the husband’s incomplete account of the conversation, it is within the province of the court to determine the effect to be given to that testimony. See Briggs v. McWeeny, 260 Conn. 296, 327, 796 A.2d 516 (2002). We therefore do not separately address that claim.
At the hearing on the motion to open, the court also heard testimony from other individuals, including several members of the respondent’s family. Although much of that testimony mirrored the respondent’s testimony concerning the nature of her encounter with Wood, the court similarly was entitled to disbelieve it. The sheer volume of testimony propounding one version of an incident does not necessarily correlate with the credibility of that version, and the court still is entitled to disbelieve it in favor of another version.
General Statutes § 45a-719 provides in relevant part that “[f]or the purpose of this section, ‘best interest of the child’ shall include, but not be limited to, a consideration of the age of the child, the nature of the relationship of the child with the caretaker of the child, the length of time the child has been in the custody of the caretaker, the nature of the relationship of the child with the birth parent, the length of time the child has been in the custody of the birth parent, any relationship that may exist between the child and siblings or other children in the caretaker’s household, and the psychological and medical needs of the child. The determination of the best interest of the child shall not be based on a consideration of the socioeconomic status of the birth parent or the caretaker.”