In re Madison C. ( 2022 )

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IN RE MADISON C. ET AL*
(AC 44926)
Moll, Cradle and Clark, Js.
Syllabus
The respondent mother, whose parental rights as to her minor children
previously had been terminated, appealed from the judgment of the trial
court granting the motion to strike her petition for a new trial filed by
the Commissioner of Children and Families. In her petition, the mother
made allegations that she claimed constituted newly discovered evi-
dence that, if known during the pendency of her termination trial, would
have affected the outcome, specifically, that the court had approved
permanency plans following the termination trial seeking to reunite the
minor children with their father and that, following her release from
prison after the termination trial, she had achieved a degree of personal
rehabilitation sufficient to encourage the belief that she could resume
a responsible position in the children’s lives. The court concluded that
the mother had failed to plead sufficient facts for a new trial pursuant
to statute (§ 52-270). On the plaintiff’s appeal, held that the trial court
properly granted the motion to strike the petition for a new trial as it
failed to state a claim on which relief could be granted: the mother’s
allegations in her petition did not constitute newly discovered evidence
as the court’s orders approving new permanency plans were entered well
after the termination trial had ended and judgment had been rendered
terminating the mother’s parental rights and, thus, were not facts that
existed at the time of her trial; moreover, the mother’s allegation that
she had achieved a degree of personal rehabilitation sufficient to encour-
age the belief that she could resume a responsible position in her chil-
dren’s lives also concerned events that occurred after her trial and were
but a change in circumstances, as evidence in support of facts or events
that did not exist or had not yet occurred at the time of trial is not and
cannot be newly discovered.
Argued February 3—officially released June 8, 2022**
Procedural History
Petitions by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor children, brought to the Superior
Court in the judicial district of New Britain, Juvenile
Matters, where the petitions were withdrawn as to the
respondent father; thereafter, the matter was tried to
the court, Aaron, J.; judgments terminating the respon-
dent mother’s parental rights, from which the respon-
dent mother appealed to this court, Bright, C. J., and
Suarez and Lavery, Js., which affirmed the judgments;
subsequently, the respondent mother filed a petition
for a new trial and the court, C. Taylor, J., granted the
motion to strike the petition filed by the Commissioner
of Children and Families and rendered judgment thereon,
from which the respondent mother appealed to this
court. Affirmed.
Albert J. Oneto IV, assigned counsel, for the appellant
(respondent mother).
Benjamin Abrams, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Evan O’Roark, assistant attorney general, for
the appellee (petitioner Commissioner of Children and
Families).
Opinion
CLARK, J. Following the termination of her parental
rights as to her three children,1 the respondent, Patricia
K., filed a petition for a new trial (petition),2 pursuant
to General Statutes § 52-270.3 In response, the Commis-
sioner of Children and Families (commissioner) filed
a motion to strike for failure to state a claim upon which
relief can be granted, which the court ultimately granted
and rendered judgment thereon. The respondent appeals
from that judgment, claiming that the court improperly
granted the motion to strike her petition because she
had alleged newly discovered evidence that, if known
during the pendency of her trial, likely would have
altered the outcome.4 Because the facts averred in the
respondent’s petition do not constitute newly discov-
ered evidence within the meaning of § 52-270, we affirm
the judgment of the trial court.
The following facts, as summarized by this court in
the respondent’s direct appeal from the judgments ter-
minating her parental rights; see In re Madison C., 201
Conn. App. 184, 241 A.3d 756, cert. denied, 335 Conn.
985, 242 A.3d 480 (2020); and procedural history are
relevant to our resolution of this appeal. The respondent
and Chester C. are the biological parents of Madison,
Ryan, and Andrew. Id., 186. The Department of Children
and Families (department) became involved with the
family in 2013, when Madison tested positive for mari-
juana and methadone upon birth. Id. Ryan, too, tested
positive for marijuana and methadone when he was
born in 2015. Id. Both Madison and Ryan were dis-
charged from the hospital in the care of their parents.
Id. In April, 2017, the police responded to a domestic
dispute at the family’s home where they found drug
paraphernalia. Id. The police also found that the house
was in deplorable condition. Id. On May 2, 2017, Madi-
son and Ryan were removed from their parents’ care
pursuant to an order of temporary custody and placed
in a nonrelative foster home. Id. That day, the commis-
sioner also filed neglect petitions as to Madison and
Ryan, alleging that they were being permitted to live
under conditions, circumstances, or associations injuri-
ous to their well-being. Id.When Andrew was born in November, 2017, he tested
positive for marijuana, methadone, and cocaine. Id.,
187. Pursuant to an order of temporary custody, Andrew
was discharged from the hospital to the care of a nonrel-
ative foster family. Id. On November 20, 2017, the com-
missioner filed a neglect petition as to Andrew on the
basis of predictive neglect. Id. On November 30, 2017,
the court, Hon. Barbara M. Quinn, judge trial referee,
consolidated the three neglect petitions, adjudicated
the children neglected, and ordered them committed
to the custody of the commissioner. Id. The court also
ordered specific steps for the respondent and Chester
C. Id.On February 1, 2019, the commissioner filed petitions
to terminate the parental rights of the respondent and
Chester C. to each of the three children ‘‘on the grounds
that the court in the prior proceeding found the children
to have been neglected, and [the parents] had failed to
achieve the degree of personal rehabilitation that would
encourage the belief that, within a reasonable time and
considering the ages and needs of the children, they
could assume a responsible position in their children’s
lives.’’5 Id.; see General Statutes § 17a-112 (j) (3) (B)
(i). The court, Aaron, J., tried the termination of paren-
tal rights petitions on August 5, 6, 7, and 16, 2019.6 In
re Madison C., supra, 201 Conn. App. 188. On August 16,
2019, prior to the close of evidence, the commissioner
withdrew the termination petitions as to Chester C.7 Id.The court issued a memorandum of decision on
November 8, 2019, granting the petitions to terminate
the respondent’s parental rights to the children. Id. In
the adjudicatory phase of the proceedings, the court
found by clear and convincing evidence that the respon-
dent had not and would not achieve the degree of per-
sonal rehabilitation that would encourage the belief
that within a reasonable time, considering the ages and
needs of all three children, she could assume a responsi-
ble position in their lives. Id., 188–89.
In the dispositional phase of the proceedings, the court
made findings on the criteria set forth in § 17a-112 (k),
and ‘‘noted that the respondent had not successfully
taken advantage of or complied with the services pro-
vided by the department and had not shown a willing-
ness or ability to provide a safe and nurturing environ-
ment in which she appropriately could parent the children.
Additionally, the court found that there was credible
evidence to suggest that the ‘toxic relationship between
the parents and [the] respondent’s overbearing and
manipulative behavior toward [Chester C.] is an impedi-
ment to [Chester C.’s] effective parenting of the chil-
dren.’ ’’ Id., 189. The court rendered judgments terminat-
ing the respondent’s parental rights to each of the children.
The respondent appealed.
On appeal to this court, the respondent did not chal-
lenge Judge Aaron’s findings that she had failed to reha-
bilitate, had not taken advantage of the services offered
to her by the department, had not shown a willingness
or ability to provide a safe and nurturing environment
for the children or that her behavior toward Chester C.
was an impediment to his ability to effectively parent
the children. See id., 189. Rather, she claimed that the
‘‘court deprived her of her substantive due process
rights as guaranteed by the fourteenth amendment to
the United States constitution because termination of
her parental rights was not the least restrictive means
necessary to ensure the state’s compelling interest in
protecting the best interests of the children.’’ Id., 189–
90.
The respondent’s argument that there were less restric-
tive alternatives to the termination of her parental rights
was predicated on the commissioner’s withdrawal, on
the last day of trial, of the termination petitions as to
Chester C., which resulted in the commissioner’s filing
of new permanency plans to reunify the children with
Chester C., rather than to place them for adoption. Id.,
191. She argued that, because there was a change of
permanency plans, ‘‘alternatives to termination were
appropriate because the court did not base its decision
on a finding that she posed a physical threat to the
safety of the children or that she would abuse her paren-
tal status in ways that could harm the children if the
children were reunified with Chester C. Rather, she
argue[d], the court based its decision to terminate [her
parental rights] on its concern that she was ‘an impedi-
ment to [the] father’s effective parenting of the chil-
dren.’ She contend[ed] that the trial court’s concerns
about the potential for her to undermine Chester C.’s
parenting could have been addressed through further
orders limiting her guardianship, rather than by termi-
nating her parental rights.’’ Id. The respondent, how-
ever, acknowledged that she had not preserved this
claim of constitutional error at trial; id., 190; and sought
to prevail on appeal pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
This court concluded that the record was inadequate
to review the respondent’s unpreserved constitutional
claim and affirmed the judgments of the trial court. In
re Madison C., supra, 201 Conn. App. 196; see also State
v. Golding, supra, 213 Conn. 239 (party can prevail on
constitutional claim that was not preserved at trial only
if record is adequate to review alleged error). In reach-
ing this conclusion, this court noted that the respondent
had not proposed any alternative permanency plans at
trial that would have addressed the trial court’s con-
cerns while allowing her to maintain her parental rights.
In re Madison C., supra, 196. ‘‘[T]he only possible refer-
ence to an alternative plan came, not during the presen-
tation of evidence, but during closing arguments when
the respondent’s counsel stated: ‘If your plan is to
reunify with the father and not free these children for
adoption, I submit that my client’s parental rights should
not be terminated in this matter.’ ’’ Id., 194. In the absence
of alternative proposals, the trial court had no factual
predicates on which to make a finding as to whether
there were narrower means, other than termination,
available to protect the children’s welfare and afford
them permanency. Id., 194–96. Accordingly, this court
concluded that the respondent’s failure to raise this
claim at trial, file a motion to reargue or seek an articula-
tion as to whether the court had considered alternatives
to terminating her parental rights ‘‘left the record devoid
of evidence and findings necessary to review her consti-
tutional claim.’’ Id., 194.
On January 21, 2021, the respondent filed the instant
petition for a new termination of parental rights trial
pursuant to § 52-270. She alleged in relevant part that
‘‘[o]n or about August 16, 2019, the . . . commissioner
withdrew the petitions to terminate [Chester C.’s]
parental rights, but proceeded with a trial to terminate
the [respondent’s] parental rights. . . . [P]ursuant to
the fourteenth amendment to the United States consti-
tution, the . . . commissioner was constitutionally
prohibited from obtaining judgments of the Superior
Court terminating [her] parental rights absent a compel-
ling governmental interest.’’ The respondent further
averred that termination of her parental rights ‘‘was or
may not have been necessary’’ in one or more of the
following ways: ‘‘to secure for the children a permanent
placement as required by General Statutes §§ 17a-110,
17a-110a, and 17a-11a . . . [or] to protect the children’s
essential health and safety because less drastic mea-
sures were available to the . . . commissioner . . . .’’8
The respondent asserted as the ground for a new trial
that she had ‘‘discovered material evidence in her favor
that she could not have reasonably discovered before
or during trial . . . .’’ The newly discovered evidence
she alleged in support of her claim were the permanency
plans seeking to reunify Madison, Ryan, and Andrew
with Chester C., which the court, C. Taylor, J., approved
several months after the termination of parental rights
trial had concluded.9 Additionally, the respondent alleged
that there was newly discovered evidence demonstra-
ting that she had ‘‘achieved a degree of personal rehabil-
itation sufficient to encourage the belief that she could
resume a responsible position in her children’s lives.’’
Specifically, the respondent alleged that, after her release
from prison on June 11, 2020; see footnotes 5 and 6 of
this opinion; she ‘‘found gainful employment, completed
parenting education, graduated from intensive outpa-
tient substance abuse treatment . . . engaged in men-
tal health counseling . . . [and] did not interfere with
[Chester C.’s] effective parenting of the children . . . .’’
On February 23, 2021, the commissioner filed a motion
to strike the petition, arguing that the petition did not
allege ‘‘newly discovered evidence’’ within the meaning
of § 52-270 because it alleged events that occurred after
the conclusion of the termination of parental rights trial.
On March 15, 2021, the respondent filed a memorandum
in opposition to the motion to strike. Judge Taylor held
a hearing on the motion to strike on May 24, 2021,10
and summarily granted the motion on the same date.
The court issued a written articulation of its decision
on July 15, 2021.
In its articulation, the court first addressed the respon-
dent’s claim that, when the commissioner withdrew the
termination petitions against Chester C., she gained a
constitutional defense to the termination petitions
against her because the children were no longer going
to be adopted, and there was no compelling state need
to terminate her parental rights. The court noted that
the respondent had pursued this claim on direct appeal
and that this court had concluded that the respondent
had failed to provide an adequate record for review.
As to the respondent’s allegation that she was entitled
to a new trial because she had achieved a greater degree
of rehabilitation than the court was led to believe at
the trial on the termination petitions, the court observed
that she could have made such arguments in her appeal
from the judgments terminating her parental rights.
In sum, the court concluded that the respondent’s
petition had failed to plead sufficient facts to support
a petition for a new trial and granted the motion to
strike, explaining that, ‘‘[i]f an allegation as to a change
of circumstances after trial constituted a sufficient
basis to grant a new trial on a termination of parental
rights petition, a parent could prevent a child from achiev-
ing permanency and stability indefinitely.’’ (Emphasis
added.) The respondent subsequently appealed to this
court.11
On appeal, the respondent claims that the trial court
improperly granted the motion to strike her petition
because she alleged facts sufficient to state a claim for
a new trial pursuant to § 52-270 on the ground of newly
discovered evidence. Specifically, she argues that her
petition alleged that, following the conclusion of her
trial, she discovered new evidence demonstrating that
it was unnecessary, as a matter of due process, to termi-
nate her parental rights because after her parental
rights had been terminated (1) the trial court approved
permanency plans for the children calling for reunifica-
tion with Chester C. and (2) she had rehabilitated to a
point where she could safely assume a responsible posi-
tion in the lives of her children, contrary to what Judge
Aaron had been led to believe at trial. The commissioner
argues that, for purposes of § 52-270, newly discovered
evidence must be evidence of facts that existed at the
time of the original trial and, therefore, the court prop-
erly granted the motion to strike the respondent’s peti-
tion. We agree with the commissioner.
We begin our discussion by setting forth our standard
of review. ‘‘Because a motion to strike challenges the
legal sufficiency of a pleading and, consequently, requires
no factual findings by the trial court, our review of
the court’s ruling on [a motion to strike] is plenary.’’
(Internal quotation marks omitted.) Hirsch v. Woermer,
184 Conn. App. 583, 587, 195 A.3d 1182, cert. denied,
330 Conn. 938, 195 A.3d 384 (2018). ‘‘We take the facts
to be those alleged in the complaint that has been
stricken and we construe the complaint in the manner
most favorable to sustaining its legal sufficiency. . . .
Thus, [i]f facts provable in the complaint would support
a cause of action, the motion to strike must be denied.’’
(Internal quotation marks omitted.) Thomas v. State,
130 Conn. App. 533, 543, 24 A.3d 12, cert. denied, 302
Conn. 945, 30 A.3d 2 (2011). ‘‘It is fundamental that in
determining the sufficiency of a complaint challenged
by a [party’s] motion to strike, all well-pleaded facts
and those facts necessarily implied from the allegations
are taken as admitted.’’ (Internal quotation marks omit-
ted.) Coppola Construction Co. v. Hoffman Enterprises
Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
A motion to strike, however, is properly granted by the
trial court ‘‘if the complaint alleges mere conclusions of
law that are unsupported by the facts alleged.’’ (Internal
quotation marks omitted.) Fort Trumbull Conservancy,
LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
A trial court’s authority to grant a petition for a new
trial is set forth in § 52-270 (a), which provides in rele-
vant part that ‘‘[t]he Superior Court may grant a new
trial of any action that may come before it, for . . .
the discovery of new evidence . . . .’’ What constitutes
newly discovered evidence is not defined by statute,
but ‘‘[t]he law on the subject of new trials for [the
discovery of new evidence] is well settled in this state
by a long and uniform course of judicial decisions
. . . .’’ Hamlin v. State, 48 Conn. 92, 93 (1880). Our
appellate case law establishes that ‘‘[a] party is entitled
to a new trial on the ground of newly discovered evi-
dence if such evidence is, in fact, newly discovered,
will be material to the issue on a new trial, could not
have been discovered and produced, on the trial which
was had, by the exercise of due diligence, is not merely
cumulative and is likely to produce a different result.’’
(Internal quotation marks omitted.) Johnson v. Raffy’s
Café I, LLC, 173 Conn. App. 193, 211, 163 A.3d 672(2017); see also Asherman v. State, 202 Conn. 429, 434,
521 A.2d 578 (1987), as further refined in Shabazz v.
State, 259 Conn. 811, 827–28, 792 A.2d 797 (2002); Ham-
lin v. State, supra, 93–94. ‘‘This strict standard is meant
to effectuate the underlying equitable principle that
once a judgment is rendered it is to be considered final,
and should not be disturbed by posttrial motions except
for a compelling reason.’’ (Internal quotation marks
omitted.) Asherman v. State, supra, 434.
It is well established that the granting of a new trial
‘‘is not intended to reach errors available on appeal of
which the party should have been aware at the time
when an appeal might have been taken. . . . It is an
additional safeguard to prevent injustice in cases where
the usual remedy by appeal does not lie or where, if
there is an adequate remedy by appeal, the party has
been prevented from pursuing it by fraud, mistake or
accident. . . . [Section 52-270] does not furnish a sub-
stitute for, nor an alternative to, an ordinary appeal,
but applies only when no other remedy is adequate and
when in equity and good conscience relief against a
judgment should be granted.’’ (Citation omitted; empha-
sis omitted; internal quotation marks omitted.) LaBow
v. LaBow, 69 Conn. App. 760, 766, 796 A.2d 592, cert.
denied, 261 Conn. 903, 802 A.2d 853 (2002). ‘‘[T]he
causes for which new trials may be granted . . . are
only such as show that the parties did not have a fair
and full hearing at the first trial . . . .’’ (Internal quota-
tion marks omitted.) In re Jonathan M., 255 Conn. 208,
239, 764 A.2d 739 (2001).
I
We first consider the respondent’s allegation that, sev-
eral months after the conclusion of the trial on the petition
to terminate her parental rights, the court entered orders
approving new permanency plans for the children, which
called for reunification with Chester C. Because those
orders were entered well after the trial had ended and
judgment had been rendered terminating the respon-
dent’s parental rights, we conclude that the respondent
has not alleged the existence of newly discovered evi-
dence within the meaning of § 52-270. As a result, the
court properly concluded that this allegation does not
state a claim for a new trial on the basis of newly discov-
ered evidence.
Our case law makes clear that a party seeking a new
trial under § 52-270 on the basis of the discovery of
new evidence must allege evidence of facts or events
that existed at the time of the original proceeding. See
Lozada v. Warden, 24 Conn. App. 723, 725, 591 A.2d
1272 (1991) (evidence of first habeas counsel’s ineffec-
tiveness is not newly discovered evidence sufficient to
support petition for new trial because such evidence
did not exist, but rather was generated, at time of first
habeas trial), aff’d, 223 Conn. 834, 613 A.2d 818 (1992);
Wendt v. Wendt, Superior Court, judicial district of
Stamford-Norwalk, Docket No. FA-XX-XXXXXXX-S (March
2, 2001) (newly discovered evidence must be based on
facts in existence at trial); State v. Goodwin, 3 Conn.
Cir. 386, 390–91, 215 A.2d 913 (evidence that is inadmis-
sible at time of trial because it did not exist at time of
trial is not newly discovered evidence), cert. denied,
153 Conn. 725, 213 A.2d 525 (1965); see also Black’s Law
Dictionary (11th Ed. 2019) p. 701 (‘‘newly discovered
evidence’’ is evidence in existence at time of trial, which
then unknown to party, is later discovered). Evidence
in support of facts or events that did not exist or had
not yet occurred at the time of trial, is not, and cannot
be, newly discovered.
Our conclusion that a petition for a new trial on the
ground of newly discovered evidence must be based
on evidence offered to prove facts that existed at the
time of the original trial is consistent with this state’s
well settled standard governing the merits of a petition
for a new trial. In Connecticut, a party seeking to prevail
on a petition for a new trial on the ground of newly
discovered evidence must demonstrate that the evi-
dence ‘‘could not have been discovered and produced
[in] the former trial by the exercise of due diligence.’’
(Internal quotation marks omitted.) Skakel v. State, 295
Conn. 447, 507, 991 A.2d 414 (2010). ‘‘[I]f the new evi-
dence relied upon could have been known with reason-
able diligence, a new trial will not be granted.’’ (Internal
quotation marks omitted.) Id., 506. The requirement
that a party must have exercised due diligence to dis-
cover what could have been known at trial is impossible
to square with a definition of newly discovered evidence
that includes evidence of facts that did not exist at the
time of trial. A party simply cannot be expected to
diligently pursue evidence establishing facts that did
not exist at trial. See Wendt v. Wendt, supra, Superior
Court, Docket No. FA-XX-XXXXXXX-S (‘‘[b]y definition,
evidence of posttrial events can never be discovered at
the time of trial, regardless of the degree of diligence
exercised’’ (emphasis in original)).
The respondent nevertheless contends that our
Supreme Court’s decisions in Kubeck v. Foremost Foods
Co., 190 Conn. 667, 461 A.2d 1380 (1983), and Taborsky
v. State, 142 Conn. 619, 116 A.2d 433 (1955), stand for
the proposition that a trial court may grant a petition
for a new trial even though the alleged newly discovered
evidence seeks to establish facts or events that occurred
or came into existence after a trial has ended. We are
not persuaded.
In Kubeck, the plaintiff commenced a personal injury
action after sustaining injuries in a motor vehicle crash.
Kubeck v. Foremost Foods Co., supra, 190 Conn. 668.
Because the court found in favor of the plaintiff as to
liability on summary judgment, only the issue of dam-
ages was tried to the jury, which awarded the plaintiff
$10,000. Id. The plaintiff later filed a petition for a new
trial in light of newly discovered evidence indicating
that she had suffered a disc injury in the motor vehicle
collision and that, therefore, the original judgment was
inadequate and a new trial would produce a different
result. Id., 668–71. The trial court denied her petition
on the ground that she had failed to show that the
new evidence could not have been discovered with due
diligence prior to the first trial. Id., 671. On appeal, our
Supreme Court reversed the court’s judgment, conclud-
ing that the court had abused its discretion because,
in finding that the plaintiff had failed to exercise due
diligence, it had erroneously imputed to the plaintiff the
failure of her doctors to discover the injury. Id., 672–74.
Kubeck did not hold that a petition for a new trial ‘‘need
not be predicated on facts existing at the time of trial.’’
Nothing in Kubeck suggests that the newly discovered
medical condition at issue in that case did not exist at
the time of trial. On the contrary, our Supreme Court
noted that the trial court had found that the disc injury
was causally related to the motor vehicle crash and that
the trial court’s conclusion that the plaintiff had failed
to exercise due diligence was supportable only if the
failure of the plaintiff’s doctors to discover the disc
injury prior to trial was imputed to the plaintiff. Id.,
672–73. In other words, the analysis in Kubeck pre-
sumed that the disc injury existed at the time of trial
but was unknown to the plaintiff.
Our Supreme Court’s decision in Taborsky is no more
helpful to the respondent. In that case, the court reversed
the judgment of the trial court, which had denied a
petition for a new criminal trial on the ground of newly
discovered evidence bearing on the competency of a
key state’s witness in a murder trial. Taborsky v. State,
supra, 142 Conn. 621, 624–29, 634. In concluding that
the trial court had erred in denying the petition, our
Supreme Court noted that there was evidence at the
hearing on the petition establishing that the witness’
mental disability, the extent of which was not known
to the petitioner until shortly after trial, had existed
prior to and during the pendency of the petitioner’s
trial and was therefore evidence likely to bring about a
different result in a new trial. Id., 628–33. In considering
whether evidence of the witness’ competency would
be admissible and relevant to the issue of the witness’
credibility in a new trial, in the event that the witness
was unavailable to testify and transcripts of the witness’
prior testimony were offered; id., 624; the court observed
that, ‘‘since a condition of mental [disability] is always
a more or less continuous one, it would be proper, in
order to ascertain the fact of its existence at a certain
time, to consider its existence at a subsequent time.’’
(Emphasis added.) Id., 629–30. Furthermore, although
the court acknowledged that a new trial ordinarily will
not be granted on the ground of impeachment evidence,
it concluded that the impeachment evidence in Taborsky
went ‘‘to the very sanity of the key witness, without whose
evidence the accused could not have been convicted.’’
Id., 632.
Thus, the respondent’s reliance on Taborsky as stand-
ing for the proposition that newly discovered evidence
need not be predicated on facts existing at the time of
trial is misplaced. The decision makes clear that the
petitioner in that case was granted a new trial because
the discovery of new evidence bearing on the compe-
tency of a crucial state’s witness called into question
the veracity of the witness’ testimony against the peti-
tioner at the time of the original trial. The petitioner in
that case did not merely allege a change in the witness’
competency subsequent to the trial and unrelated to the
veracity of that witness at the time of the original trial.
In sum, our case law, including the authorities relied
upon by the respondent, plainly establish that, for pur-
poses of seeking a new trial on the ground of newly
discovered evidence, the evidence must be offered to
prove facts that existed or events that occurred at the
time of the original proceeding. This requirement helps
to ensure that a petition for a new trial on the basis of
newly discovered evidence is not used to undermine
the finality of judgments. As our appellate courts have
observed, the standard a party must satisfy to obtain a
new trial is ‘‘strict and is meant to effectuate the under-
lying equitable principle that once a judgment is ren-
dered it is to be considered final, and should not be
disturbed by posttrial [proceedings] except for a com-
pelling reason.’’ (Internal quotation marks omitted.)
Jones v. State, 328 Conn. 84, 92–93, 177 A.3d 534 (2018);
see also Carter v. State, 159 Conn. App. 209, 222–23,
122 A.3d 720, cert. denied, 319 Conn. 930, 125 A.3d 204(2015). ‘‘There must be an end of litigation, and for that
reason the rules governing new trials should be strictly
adhered to.’’ (Internal quotation marks omitted.) Goni-
renki v. American Steel & Wire Co., 106 Conn. 1, 12,
137 A. 26 (1927); see also Lancaster v. Bank of New
York, 147 Conn. 566, 578, 164 A.2d 392 (1960) (without
rule limiting right to new trial on basis of new evidence
merely affecting witness’s credibility, ‘‘there might
never be an end to litigation’’ (internal quotation marks
omitted)). ‘‘Finality of litigation is essential so that par-
ties may rely on judgments in ordering their private
affairs and so that the moral force of court judgments
will not be undermined. The law favors finality of judg-
ments . . . .’’ (Internal quotation marks omitted.) U.S.
Bank, National Assn. v. Mamudi, 197 Conn. App. 31,
48, 231 A.3d 297, cert. denied, 335 Conn 921, 231 A.3d
1169 (2020).
This principle of law is especially important in child
protection matters. As Judge Taylor aptly observed, if
a parent’s allegation of a change in circumstances after
a judgment is rendered is a sufficient basis for a new
trial, a parent could prevent a child from achieving
permanency and stability indefinitely. ‘‘Time is of the
essence in child custody cases. . . . This furthers the
express public policy of this state to provide all of its
children a safe, stable nurturing environment. . . .
When the child whose interest is to be protected is
very young, delay in adjudication imposes a particularly
serious cost on governmental functioning.’’ (Citations
omitted; internal quotation marks omitted.) In re Juve-
nile Appeal, 187 Conn. 431, 439–40, 446 A.2d 808 (1982);
see also In re Davonta V., 285 Conn. 483, 494, 940 A.2d
733 (2008) (our appellate cases have ‘‘noted consistently
the importance of permanency in children’s lives’’
(internal quotation marks omitted)). ‘‘There is little that
can be as detrimental to a child’s sound development
as uncertainty . . . especially when such uncertainty
is prolonged.’’ Lehman v. Lycoming County Children’s
Services Agency, 458 U.S. 502, 513–14, 102 S. Ct. 3231,
73 L. Ed. 2d 928 (1982). Thus, a ‘‘[s]tate’s interest in
finality is unusually strong’’ with respect to disputes
involving the termination of parental rights. Id., 513.
Although the respondent acknowledges that the law
favors finality of litigation, she argues that ‘‘the principle
must yield on occasion when it appears that its applica-
tion will result in a miscarriage of justice’’ and that
the circumstances alleged in her petition warrant the
exercise of the trial court’s equitable powers.12 We
acknowledge that ‘‘[a] petition for a new trial under
§ 52-270 is a proceeding essentially equitable in nature’’;
(internal quotation marks omitted) Jacobs v. Fazzano,
59 Conn. App. 716, 722, 757 A.2d 1215 (2000); and ‘‘pro-
vides a critical procedural mechanism for remedying
an injustice.’’ (Internal quotation marks omitted.)
Mitchell v. State, 338 Conn. 66, 74, 257 A.3d 259 (2021).
That said, the grounds that may be asserted to support
a petition for a new trial are circumscribed by statute.
See Black v. Universal C.I.T. Credit Corp., 150 Conn.
188, 192, 187 A.2d 243 (1962) (petition for new trial ‘‘is
authorized, and its scope is limited, by the terms of the
statute’’). The party seeking a new trial ‘‘has the burden
of proving by a preponderance of the evidence that [he
or she] is entitled to a new trial on the grounds claimed.’’
(Internal quotation marks omitted.) Jacobs v. Fazzano,
supra, 723. Accordingly, the fundamental question before
the trial court on the commissioner’s motion to strike
in this appeal was whether the facts alleged in the
respondent’s petition stated a claim for a new trial pur-
suant to § 52-270. Because the court’s orders approving
new permanency plans did not occur until after the
respondent’s trial, they were not facts in existence at
the time of her trial and, consequently, did not consti-
tute newly discovered evidence. These allegations thus
failed to satisfy the threshold requirement of stating a
claim upon which equitable relief may be granted.
II
For the same reasons discussed in part I of this opin-
ion, the respondent’s claim that she is entitled to a new
trial for the discovery of new evidence establishing that
she rehabilitated to a greater extent than what the trial
court was led to believe at her trial also fails. In her
petition for a new trial, the respondent alleged that,
following her release from prison on June 11, 2020,
which was approximately seven months after the court
terminated her parental rights, she found gainful employ-
ment, graduated from intensive outpatient substance
abuse treatment, finished relapse prevention therapy,
and engaged in counseling to address her mental health
issues. She also alleged that she had not interfered with
Chester C.’s effective parenting of the children and that
she had ‘‘achieved a degree of personal rehabilitation
sufficient to encourage the belief that she could resume
a responsible position in her children’s lives.’’ On appeal,
she argues that the court improperly struck her petition
as to this claim because it alleges newly discovered
evidence that establishes that the termination of her
parental rights was not necessary to achieve a compel-
ling government interest and, therefore, is evidence likely
to produce a different result at a new trial.
Like the respondent’s allegations relating to the orders
approving new permanency plans with respect to Ches-
ter C., these allegations concern events that occurred
after the respondent’s trial, which concluded on August
16, 2019. If anything, these allegations are but a change
in circumstances and, consequently, are not legally suf-
ficient to support a petition for a new trial based on
newly discovered evidence under § 52-270.
For the foregoing reasons, we conclude that the court
properly granted the motion to strike the respondent’s
petition for a new trial as it failed to state a claim on
which relief could be granted.
The judgment is affirmed.
In this opinion the other judges 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.
** June 8, 2022, the date this decision was released as a slip opinion, is
the operative date for all substantive and procedural purposes.
1
See In re Madison C., 201 Conn. App. 184, 241 A.3d 756, cert. denied,
335 Conn. 985, 242 A.3d 480 (2020).
2
The respondent filed a consolidated petition for a new trial with respect to
the judgments terminating her parental rights as to the three minor children.
3
General Statutes § 52-270 (a) provides: ‘‘The Superior Court may grant
a new trial of any action that may come before it, for mispleading, the
discovery of new evidence or want of actual notice of the action to any
defendant or of a reasonable opportunity to appear and defend, when a just
defense in whole or part existed, or the want of actual notice to any plaintiff
of the entry of a nonsuit for failure to appear at trial or dismissal for
failure to prosecute with reasonable diligence, or for other reasonable cause,
according to the usual rules in such cases. The judges of the Superior Court
may in addition provide by rule for the granting of new trials upon prompt
request in cases where the parties or their counsel have not adequately
protected their rights during the original trial of an action.’’
4
The attorneys for all three minor children, the guardians ad litem for
Ryan and Andrew, and counsel for the foster mother to Ryan submitted
statements, pursuant to Practice Book § 79-6 (c), adopting the commission-
er’s brief on appeal.
5
The respondent had ‘‘a long history of substance abuse, specifically
with heroin, and ha[d] been on methadone maintenance intermittently since
2012.’’ In re Madison C., supra, 201 Conn. App. 187. Her treatment ‘‘oscillated,
with periods of sobriety interrupted by intense relapses.’’ (Internal quotation
marks omitted.) Id. As a result of the respondent’s substance abuse issues,
she had many interactions with the criminal justice system. Id. In April,
2017, she was arrested and charged with risk of injury to a child in connection
with the domestic dispute that led to the removal of Madison and Ryan
from her care. Id. She ultimately was convicted of risk of injury to a child.
Id., 188.
6
The respondent was incarcerated at the time of the termination of paren-
tal rights trial as a result of her conviction for risk of injury to a child. See
footnote 5 of this opinion.
7
During the pendency of the trial, on August 14, 2019, the commissioner
also filed a motion to review Andrew’s permanency plan, with the goal of
reuniting Andrew with Chester C. In addition, when the termination of
parental rights petitions against Chester C. were withdrawn on August 16,
the court ordered specific steps for Chester C. and canvassed him with
respect to that order.
8
The respondent also alleged that termination of her ‘‘parental rights was
or may not have been necessary for the . . . commissioner to continue
receiving federal funding pursuant to the Adoption and Safe Families Act
of 1997, Pub. L. No. 105-89, 111 Stat. 2115.’’ In its memorandum of decision,
the court, C. Taylor, J, concluded that this basis for a new trial was legally
insufficient because the respondent had not alleged any newly discovered
evidence in her petition as to this issue. The respondent does not challenge
that ruling on appeal.
9
The court approved new permanency plans for Madison and Ryan on
January 2, 2020, and a new permanency plan for Andrew on January 23, 2020.
10
The intervening foster parents of Andrew also filed a motion to strike
the respondent’s petition on the day of the hearing.
11
On July 30, 2021, this court sua sponte ordered the parties to file memo-
randa of law giving reasons why the original appeal should not be dismissed
on the ground that judgment had not been rendered on the stricken petition
for a new trial. Thereafter, the respondent moved the trial court for judgment
on the stricken complaint. On August 11, 2021, Judge Taylor granted that
motion and rendered judgment on the stricken petition. The respondent
subsequently withdrew her original appeal and filed the present appeal on
August 30, 2021.
12
The respondent’s assertion that she is entitled to equitable relief from
the judgment terminating her parental rights is predicated, in part, on her
contention that her direct appeal from that judgment was a ‘‘per se’’ inade-
quate remedy. (Emphasis in original.) That contention lacks merit. In her
direct appeal, the respondent claimed that she was deprived of her due
process rights because termination of her parental rights was not the least
restrictive means necessary to achieve a compelling state interest once the
commissioner withdrew the termination petitions as to Chester C. In re
Madison C., supra, 201 Conn. App. 191. This court declined to review her
constitutional claim because she failed to raise it at trial and had failed to
create an adequate record for review under Golding. Id., 190, 194. It was
not impossible for her to have created such a record, however. The respon-
dent could have availed herself of appellate review of her constitutional
claim by raising it in the termination trial or ensuring the record was adequate
for review under Golding.