In re Egypt E. , 322 Conn. 231 ( 2016 )

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IN RE EGYPT E. ET AL.*
(SC 19643)
(SC 19644)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued May 3—officially released July 21, 2016**
Dana M. Hrelic, with whom was Brendon P. Lev-
esque, for the appellant in Docket No. SC 19643 (respon-
dent father).
Michael D. Day, for the appellant in Docket No. SC
19644 (respondent mother).
Michael Besso, with whom, on the brief, were George
Jepsen, attorney general, Benjamin Zivyon and
Tammy Nguyen-O’Dowd, assistant attorneys general,
for the appellee in both cases (petitioner).
James W. Lux, for the minor children in both cases.
Opinion
EVELEIGH, J. The respondent father, Morsy E., and
the respondent mother, Natasha E., filed separate
appeals from the judgments of the trial court terminat-
ing their parental rights as to their minor children, Egypt
E. and Mariam E. On appeal, the respondents claim
that the trial court improperly terminated their parental
rights to their minor children1 pursuant to General Stat-
utes (Rev. to 2013) § 17a-112 (j).2 As a threshold matter,
the petitioner, the Commissioner of Children and Fami-
lies,3 asserts4 that this court lacks subject matter juris-
diction to hear the respondents’ appeals because the
respondents did not appeal from the judgments of the
trial court terminating their rights as to their minor
children on the ground that reunification efforts were
not required under General Statutes (Rev. to 2013)
§§ 17a-112 (j) and 17a-111b (b).5 After a thorough review
of the record, we conclude that, due to a clerical error
at the trial court, the record is not sufficiently clear
to determine whether the respondents were properly
notified of the basis of the trial court’s judgments such
that they could properly appeal from its determination
that the petitioner was not required to make reunifica-
tion efforts pursuant to §§ 17a-112 (j) and 17a-111b (b).
Accordingly, because the clerical error at the trial court
implicates both the integrity of the trial court’s record
keeping and the due process rights of the respondents to
appeal from the judgments of the trial court terminating
their parental rights, we must remand the matter for a
new trial.
The following facts, as found by the trial court, and
procedural history are relevant to the disposition of
this appeal. On September 1, 2013, the respondents
brought Mariam to the Connecticut Children’s Medical
Center (hospital) for treatment of a right shoulder
injury. Mariam was seven weeks old at that time. An
examination of Mariam revealed multiple injuries to her
shoulders, legs, stomach, and nose, including six bone
fractures. The respondents did not provide an explana-
tion for these injuries. Suspecting abuse, the physician
assistant who examined Mariam notified the petitioner.
On the same day, while Mariam was still in the hospital,
the petitioner took Mariam and Egypt into custody pur-
suant to an emergency ninety-six hour administrative
hold. See General Statutes (Rev. to 2013) § 17a-101g.
On September 5, 2013, the petitioner filed neglect
petitions alleging that the minor children were being
permitted to live under conditions, circumstances, or
associations injurious to their well-being. On October
4, 2013, the petitioner filed petitions to terminate the
respondents’ parental rights to their minor children on
the basis of certain alleged acts of parental commission
or omission denying the minor children care, guidance,
or control necessary for their well-being. See General
Statutes (Rev. to 2013) § 17a-112 (j) (3) (C). The respon-
dents denied these allegations. The trial court subse-
quently consolidated the neglect and termination
petitions for the purpose of trial.
On June 5, 2014, approximately six months before
the trial commenced, the petitioner filed a ‘‘motion for
finding of no reunification efforts’’ pursuant to § 17a-
111b. Specifically, the petitioner sought a finding, pursu-
ant to § 17a-111b (b) (1) (B), that no reunification efforts
were required on the basis of the severe physical abuse
of Mariam. Four days later, the petitioner filed a motion
to review the permanency plans for the minor children.
The trial court reserved judgment on these motions
until after trial.
On June 1, 2015, after a nine day trial, the trial court
rendered judgments granting the neglect and termina-
tion petitions in accordance with a written memoran-
dum of decision. With respect to the neglect petition on
behalf of Mariam, the court made findings, principally
based on the unexplained cause of Mariam’s injuries,
that Mariam was abused in that she sustained physical
injuries by ‘‘nonaccidental means,’’ was ‘‘denied proper
care and attention, physically, educationally, emotion-
ally or morally,’’ and had been ‘‘permitted to live under
conditions, circumstances or associations injurious to
her well-being.’’ With respect to Egypt, the court found
that she was neglected under the doctrine of predictive
neglect on the ground that she lived in the same home
where Mariam had sustained her injuries.6
With respect to the adjudication phase of the termina-
tion proceedings, the trial court determined that the
petitioner had proven, by clear and convincing evi-
dence, all of the elements necessary to terminate the
respondents’ parental rights as to the minor children.
First, the trial court found by clear and convincing evi-
dence that the petitioner had made reasonable efforts
at reunification pursuant to § 17a-112 (j) (1), and that
the respondents were unable or unwilling to benefit
from such efforts. Additionally, the trial court found
that both respondents had committed an act of commis-
sion or omission that denied the minor children the
care necessary for their well-being.7 See General Stat-
utes (Rev. to 2013) § 17a-112 (j) (3) (C). Regarding the
dispositional phase, the trial court concluded that there
was clear and convincing evidence that it was in the
minor children’s best interests to terminate the respon-
dents’ parental rights. See General Statutes (Rev. to
2013) § 17a-112 (j) (2). Finally, the trial court found that
‘‘further efforts at reunification are not appropriate for
[the respondents] with regard to [the minor children].’’
The respondents timely appealed.8
On the same day as it issued the memorandum of
decision terminating the parental rights of the respon-
dents, the trial court also granted the motion to review
the permanency plans. In its order, the trial court
adopted the factual findings and case history from its
memorandum of decision. Additionally, among other
findings, the trial court found ‘‘by clear and convincing
evidence that further efforts to reunify [the respon-
dents] with either child are not appropriate.’’ The next
day, the trial court executed orders on a standard Judi-
cial Branch form entitled ‘‘Co-termination of Parental
Rights and Appointment of Statutory Parent/Guardian’’
with respect to each of the minor children. In these
orders, the trial court noted, by checking the appro-
priate boxes, that it found by clear and convincing evi-
dence that the petitioner made reasonable efforts to
reunify the respondents with their minor children and
that the respondents were unable or unwilling to benefit
from reunification efforts. The trial court did not check
the box on either order labeled, ‘‘[r]easonable efforts
to reunify are not required . . . because the court
determined at a hearing in accordance with [§] 17a-
111b . . . or determined at a trial on the petition that
such efforts are not required.’’
On that same day, the trial court granted the petition-
er’s ‘‘motion for finding of no reunification efforts’’ not-
ing as follows: ‘‘See [c]ourt’s written order [on the]
motion to review permanency plan dated [June 1,
2015].’’ There is no indication on the order that it was
ever sent to the parties. This order was not, however,
included in the trial court file, which was certified by
the trial court clerk on June 26, 2015, and delivered to
the appellate clerk’s office on July 2, 2015. Instead,
the certified copy of the trial court file includes an
unexecuted order sheet attached to the petitioner’s
‘‘motion for finding of no reunification efforts.’’ Further-
more, a printed copy of the electronic docket for these
matters dated June 26, 2015, shows that neither the
petitioner’s motion nor the court’s order had been
entered by the trial court clerk.
Indeed, at oral argument before this court, there was
some confusion as to whether the trial court had
granted the petitioner’s ‘‘motion for finding of no reuni-
fication efforts.’’ Counsel for both of the respondents
indicated that this motion was not granted. Counsel for
the petitioner indicated that there was some ambiguity
as to whether the trial court had granted the motion
because ‘‘the record does not reflect any endorsement
of that motion one way or another,’’ but the trial court’s
statements in its memorandum of decision ‘‘in effect’’
granted the motion.
After oral arguments were heard on May 3, 2016, this
court ordered the trial court as follows: ‘‘Pursuant to
[Practice Book] § 60-5, the trial court is hereby ordered
to complete the court record by responding to the fol-
lowing question: ‘In its judgments granting the termina-
tion of parental rights petition[s] [as to the]
respondents, did the trial court pursuant to either [§]
17a-111b or [§] 17a-112 (j), hold that reunification
efforts were not required for [the] respondents.’ ’’
The trial court responded to this court’s order for
articulation as follows: ‘‘In its [June 1, 2015] decision,
the trial court found that the credible evidence put forth
in this matter clearly and convincingly established both
that [the petitioner] made reasonable reunification
efforts for the [respondents], and that neither [of the
respondents] was either able or willing to benefit from
§ 17a-112 (j) (1) efforts.
‘‘In its discussion of reunification efforts pursuant to
federal law, the trial court also found, by clear and
convincing evidence, that further efforts at reunifica-
tion were not appropriate for either [of the respondents]
as to either child.
‘‘On the same date, the trial court granted [the peti-
tioner’s] motion for finding of no reunification efforts,
specifically making reference to its findings in the [ter-
mination of parental rights] decision of the same date.
‘‘The trial court did not make a specific finding that
reunification efforts were not required for [the
respondents].’’
We begin by setting forth our standard of review.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction . . . .
Because courts are established to resolve actual contro-
versies, before a claimed controversy is entitled to a
resolution on the merits it must be justiciable. . . .
Justiciability requires (1) that there be an actual contro-
versy between or among the parties to the dispute . . .
(2) that the interests of the parties be adverse . . .
(3) that the matter in controversy be capable of being
adjudicated by judicial power . . . and (4) that the
determination of the controversy will result in practical
relief to the complainant. . . . A case is considered
moot if [the trial] court cannot grant the appellant any
practical relief through its disposition of the merits
. . . . Because a question of mootness implicates the
subject matter jurisdiction of this court, it raises a ques-
tion of law over which we exercise plenary review.’’
(Citations omitted; internal quotation marks omitted.)
JP Morgan Chase Bank, N.A. v. Mendez, 320 Conn. 1,
6–7, 127 A.3d 994 (2015); see also In re Jorden R.,
293 Conn. 539, 555–56, 979 A.2d 469 (2009) (discussing
mootness in context of failure to challenge basis upon
which reasonable efforts finding may rest).
In the present case, it is undisputed that the respon-
dents timely appealed from the judgments of the trial
court claiming, inter alia, that the trial court improperly
found that the petitioner made reasonable efforts to
reunify the respondents with the minor children and
that the respondents were unable or unwilling to benefit
from reunification efforts. See footnote 1 of this opin-
ion. The petitioner asserts that the respondents’ claims
are moot because the trial court also found pursuant
to §§ 17a-112 (j) (1) and 17a-111b that reunification
efforts were not required. The petitioner claims that,
because a finding that reunification efforts are not
required under §§ 17a-112 (j) (1) and 17a-111b is an
independent basis for terminating the parental rights of
the respondents and the respondents have not appealed
from that finding in the present case, a determination
of the respondents’ claims cannot result in practical
relief to the respondents.
We agree with the petitioner that a finding that no
reasonable efforts were required is an independent
basis upon which the trial court could have terminated
the parental rights of the respondents. In In re Jorden
R., supra, 293 Conn. 554, this court reviewed a decision
by the Appellate Court which had concluded, inter alia,
that the trial court’s factual finding that the respondent
was unable or unwilling to benefit from reunification
efforts was clearly erroneous. In that case, this court
reasoned as follows: ‘‘In light of the trial court’s finding
that the [petitioner] had made reasonable efforts to
reunify the respondent with [the minor child] and the
respondent’s failure to challenge that finding, the Appel-
late Court’s decision, which disturbed only the trial
court’s finding that reunification efforts were not
required, cannot benefit the respondent meaningfully.
Despite the Appellate Court’s holding, the trial court’s
ultimate determination that the requirements of § 17a-
112 (j) (1) were satisfied remains unchallenged and
intact. In short, the Appellate Court’s decision affords
the respondent no practical relief. The Appellate Court
should not have addressed the respondent’s claim, but
rather, should have declined to do so because it raised
a moot issue.’’ (Footnote omitted.) Id., 557. Similarly, a
finding that reunification efforts are not required under
§§ 17a-112 (j) (1) and 17a-111b is an independent basis
on which to terminate the parental rights of a respon-
dent. Therefore, if the trial court made such a finding
in the present case, and the respondents did not timely
appeal from that finding, a decision by this court that
the trial court improperly determined either that the
petitioner failed to make reasonable efforts or that the
respondents were unable or unwilling to benefit from
reunification services could not benefit the respon-
dents meaningfully.
Nevertheless, the state of the record in this case pre-
sents a unique issue. The trial court explained in its
articulation that it granted the petitioner’s ‘‘motion for
finding of no reunification efforts’’ and this court has
subsequently obtained a copy of the order granting that
motion. The trial court file, which was certified by the
trial court clerk on June 26, 2015, however, did not
contain the trial court’s order granting the petitioner’s
‘‘motion for finding of no reunification efforts.’’ Instead,
the certified copy of the trial court file includes an
unexecuted order sheet attached to the petitioner’s
motion. As previously stated in this opinion, a printed
copy of the electronic docket for these matters shows
that neither the petitioner’s motion nor the trial court’s
order was entered by the trial court clerk as of June 26,
2015. Furthermore, the order granting the petitioner’s
‘‘motion for finding of no reunification efforts’’ that
this court ultimately obtained does not contain any
indication that the parties were given notice of the
order. As a result of the clerical omission of this motion
and order from the electronically maintained docket
and the certified copy of the trial court file, it is not
clear that the respondents had notice of the trial court’s
determination under §§ 17a-112 (j) (1) and 17a-111b
within the time period permitted for appeal. In effect,
the integrity of the trial court’s record keeping process
was compromised, thus potentially affecting the appel-
late rights of the respondents.
It is undisputed that ‘‘[t]he right of a parent to raise
his or her children has been recognized as a basic consti-
tutional right. Stanley v. Illinois, 405 U.S. 645, 651, 92
S. Ct. 1208, 31 L. Ed. 2d 551 (1972). Accordingly, a
parent has a right to due process under the fourteenth
amendment to the United States constitution when a
state seeks to terminate the relationship between parent
and child. See Lassiter v. Dept. of Social Services, 452
U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981).’’
(Footnote omitted.) In re Yasiel R., 317 Conn. 773, 782,
120 A.3d 1188, reconsideration denied, 319 Conn. 921,
126 A.3d 1086 (2015).
On the basis of the foregoing, although we agree that
the trial court’s finding that no reunification efforts are
required would be an independent basis on which to
terminate the respondents’ parental rights and that,
therefore, their appeals would be moot because they
did not timely appeal from that finding, we conclude
that such a result would violate the due process rights
of the respondents in these unique circumstances. Spe-
cifically, we cannot conclude that the respondents had
an adequate opportunity to appeal from the trial court’s
determination that reunification efforts are not required
because of the clerical error in the present case. Accord-
ingly, in order to protect the due process rights of the
respondents in the present case, we must remand the
matter to the trial court for a new trial to begin no later
than September 15, 2016.
The judgments of the trial court terminating the
parental rights of the respondents as to the minor chil-
dren are reversed and the case is remanded to that
court for a new trial in accordance with this opinion.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA, McDONALD and ROBINSON, Js., concurred.
* 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 Appellate Court.
** July 21, 2016, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Specifically, the respondents claim that the judgments of the trial court
should be reversed and the case remanded for a new trial because the trial
court did not canvass the respondents pursuant to the rule articulated in
In re Yasiel R., 317 Conn. 773, 795, 120 A.3d 1188, reconsideration denied,
319 Conn. 921, 126 A.3d 1086 (2015), which was released during the pendency
of these appeals. The respondents further claim that the trial court improp-
erly determined, pursuant to General Statutes (Rev. to 2013) § 17a-112 (j),
that: (1) the petitioner had made reasonable efforts to reunify the respon-
dents with their minor children; (2) the respondents were unwilling or unable
to benefit from reunification services; and (3) the respondents’ parental
rights as to Egypt should be terminated under the doctrine of predictive
neglect. Because we conclude that the record is not sufficiently clear to
determine whether the respondents were properly notified of the basis of
the trial court’s judgments such that they could properly appeal from its
determination that the petitioner was not required to make reunification
efforts pursuant to General Statutes (Rev. to 2013) §§ 17a-112 (j) and 17a-
111b, and that such a clerical error implicates the due process rights of the
respondents, we do not reach the other claims of the respondents, but
remand the matter for a new trial.
2
General Statutes (Rev. to 2013) § 17a-112 (j) provides: ‘‘The Superior
Court, upon notice and hearing as provided in sections 45a-716 and 45a-
717, may grant a petition filed pursuant to this section if it finds by clear
and convincing evidence that (1) the Department of Children and Families
has made reasonable efforts to locate the parent and to reunify the child
with the parent in accordance with subsection (a) of section 17a-111b, unless
the court finds in this proceeding that the parent is unable or unwilling to
benefit from reunification efforts, except that such finding is not required
if the court has determined at a hearing pursuant to section 17a-111b, or
determines at trial on the petition, that such efforts are not required, (2)
termination is in the best interest of the child, and (3) (A) the child has
been abandoned by the parent in the sense that the parent has failed to
maintain a reasonable degree of interest, concern or responsibility as to the
welfare of the child; (B) the child (i) has been found by the Superior Court
or the Probate Court to have been neglected or uncared for in a prior
proceeding, or (ii) is found to be neglected or uncared for and has been in
the custody of the commissioner for at least fifteen months and the parent
of such child has been provided specific steps to take to facilitate the return
of the child to the parent pursuant to section 46b-129 and has failed to
achieve such degree of personal rehabilitation as would encourage the belief
that within a reasonable time, considering the age and needs of the child,
such parent could assume a responsible position in the life of the child; (C)
the child has been denied, by reason of an act or acts of parental commission
or omission including, but not limited to, sexual molestation or exploitation,
severe physical abuse or a pattern of abuse, the care, guidance or control
necessary for the child’s physical, educational, moral or emotional well-
being, except that nonaccidental or inadequately explained serious physical
injury to a child shall constitute prima facie evidence of acts of parental
commission or omission sufficient for the termination of parental rights;
(D) there is no ongoing parent-child relationship, which means the relation-
ship that ordinarily develops as a result of a parent having met on a day-
to-day basis the physical, emotional, moral and educational needs of the
child and to allow further time for the establishment or reestablishment of
such parent-child relationship would be detrimental to the best interest of
the child; (E) the parent of a child under the age of seven years who is
neglected or uncared for, has failed, is unable or is unwilling to achieve
such degree of personal rehabilitation as would encourage the belief that
within a reasonable period of time, considering the age and needs of the
child, such parent could assume a responsible position in the life of the
child and such parent’s parental rights of another child were previously
terminated pursuant to a petition filed by the Commissioner of Children
and Families; (F) the parent has killed through deliberate, nonaccidental
act another child of the parent or has requested, commanded, importuned,
attempted, conspired or solicited such killing or has committed an assault,
through deliberate, nonaccidental act that resulted in serious bodily injury
of another child of the parent; or (G) the parent was convicted as an adult
or a delinquent by a court of competent jurisdiction of a sexual assault
resulting in the conception of the child, except a conviction for a violation
of section 53a-71 or 53a-73a, provided the court may terminate such parent’s
parental rights to such child at any time after such conviction.’’
Hereinafter, all references to § 17a-112 are to the 2013 revision of the
General Statutes unless otherwise noted.
3
Because the Commissioner of Children and Families acts on behalf of
the Department of Children and Families, references to the petitioner include
both the Department of Children and Families and the Commissioner of
Children and Families.
4
We note that the counsel for the minor children has adopted the brief
of the petitioner.
5
General Statutes (Rev. to 2013) § 17a-111b (b) provides: ‘‘The Commis-
sioner of Children and Families or any other party may, at any time, file a
motion with the court for a determination that reasonable efforts to reunify
the parent with the child are not required. The court shall hold an evidentiary
hearing on the motion not later than thirty days after the filing of the motion
or may consolidate the hearing with a trial on a petition to terminate parental
rights pursuant to section 17a-112. The court may determine that such efforts
are not required if the court finds upon clear and convincing evidence
that: (1) The parent has subjected the child to the following aggravated
circumstances: (A) The child has been abandoned, as defined in subsection
(j) of section 17a-112; or (B) the parent has inflicted or knowingly permitted
another person to inflict sexual molestation or exploitation or severe physi-
cal abuse on the child or engaged in a pattern of abuse of the child; (2) the
parent has killed, through deliberate, nonaccidental act, another child of the
parent or a sibling of the child, or has requested, commanded, importuned,
attempted, conspired or solicited to commit or knowingly permitted another
person to commit the killing of the child, another child of the parent or
sibling of the child, or has committed or knowingly permitted another person
to commit an assault, through deliberate, nonaccidental act, that resulted
in serious bodily injury of the child, another child of the parent or a sibling
of the child; (3) the parental rights of the parent to a sibling have been
terminated within three years of the filing of a petition pursuant to this
section, provided the commissioner has made reasonable efforts to reunify
the parent with the child during a period of at least ninety days; (4) the
parent was convicted by a court of competent jurisdiction of sexual assault,
except a conviction of a violation of section 53a-71 or 53a-73a resulting in
the conception of the child; or (5) the child was placed in the care and
control of the commissioner pursuant to the provisions of sections 17a-57
to 17a-61, inclusive.’’
Hereinafter, all references to § 17a-111b are to the 2013 revision of the
General Statutes unless otherwise noted.
6
In an articulation issued on October 22, 2015, the trial court clarified
that its neglect finding as to Egypt was predicated on the doctrine of pre-
dictive neglect.
7
The petitioner also sought to terminate the respondent father’s parental
rights with respect to Egypt on the basis of assault resulting in serious
bodily injury to another child. See General Statutes (Rev. to 2013) § 17a-
112 (j) (3) (F). While the court found ‘‘clear and convincing evidence . . .
that [the respondent father] made some qualified admissions as to his part
in the assault on Mariam,’’ it ultimately concluded that the petitioner had
failed to prove this ground for termination against the respondent father.
8
The respondents appealed the judgments of the trial court to the Appel-
late Court. On March 2, 2016, after oral argument had taken place in the
Appellate Court, we transferred the respondents’ appeals to this court pursu-
ant to General Statutes § 51-199 (c) and Practice Book § 65-2.