Maria G. v. Commissioner of Children & Families , 187 Conn. App. 466 ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
MARIA G. v. COMMISSIONER OF
CHILDREN AND FAMILIES*
(AC 40692)
Alvord, Bright and Bear, Js.
Syllabus
The petitioner filed a petition for a writ of habeas corpus seeking custody
of a minor child, S, from the respondent Commissioner of Children and
Families. In 2009, the petitioner illegally brought S into the United States
using both a fraudulent passport and birth certificate, which falsely
listed the petitioner and her then husband as S’s birth parents. Subse-
quently, the respondent obtained temporary custody and eventually
placed S in a foster home, and the petitioner filed her habeas petition
seeking to regain custody of S. In response to a motion to dismiss for
lack of standing filed by the respondent, the trial court ordered the
petitioner to offer proof, at a preliminary evidentiary hearing on her
standing, that she was S’s legal guardian. Prior to the hearing, S’s biologi-
cal mother, M, filed a declaratory action with a Guatemalan court asking
the court to grant custody of S to the petitioner, and the Guatemalan
court, relying on the false birth certificate and a sworn affidavit from
M in which she averred she had conferred to the petitioner legal authority
over S, granted the petitioner parental rights, custody and representation
of S. After the petitioner submitted, inter alia, a copy of the Guatemalan
court’s judgment file as a full exhibit at the evidentiary hearing, the trial
court found that she had established prima facie evidence of her standing
to withstand the motion to dismiss. Thereafter, the respondent filed a
motion for summary judgment, claiming that the Guatemalan court’s
decree was not entitled to recognition because it was based on a false
birth certificate and notice of the proceedings had not been provided.
The trial court granted the respondent’s motion for summary judgment
and rendered judgment dismissing the habeas petition, from which the
petitioner appealed to this court. Held:
1. The petitioner could not prevail on her claim that the same evidence
used by the trial court to rule on the motion to dismiss, namely, the
Guatemalan court’s decree, also established, at the very least, a genuine
issue of material fact that precluded the court from granting the respon-
dent’s motion for summary judgment; the trial court properly concluded
that the Guatemalan court’s judgment, in which it relied on the fraudu-
lently obtained birth certificate and M’s sworn affidavit, was not required
to be enforced as a matter of comity, which is the recognition that one
nation allows within its territory to the legislative, executive or judicial
acts of another nation, as the petitioner’s claim was premised on the false
birth certificate admittedly instigated and procured by the petitioner
and her former husband with the cooperation of M, who knew the
untruthfulness of its content, and, thus, the enforcement of the Guatema-
lan court’s decree, based at least in part on the false birth certificate,
was contrary to this state’s public policy of the prevention of fraud as
a matter of law, which prohibited recognition of the Guatemalan decree.
2. The trial court correctly determined that any notice of the Guatemalan
proceedings that was provided to the respondent was insufficient as a
matter of law; given that the Guatemalan declaratory action was not
filed until June 17, 2015, and that a hearing was held the following
day, the respondent could not have been provided with notice of the
proceedings prior to June 17 because the action had not yet been filed,
the petitioner did not dispute that notice to the respondent, as described
by statute (§ 46b-115g [a]), was not provided in the period between the
filing of the proceeding and when the hearing took place one day later,
and if the petitioner knew at a hearing on June 3, 2015, that a petition
for custody and legal guardianship was going to be filed in the Guatema-
lan court, that filing was not disclosed to the court and the parties and
no documents relating to the planned filing were provided.
Argued November 14, 2018—officially released January 29, 2019
Procedural History
Petition for a writ of habeas corpus seeking custody
of a minor child from the respondent Commissioner of
Children and Families, and for other relief, brought to
the Superior Court in the judicial district of Fairfield,
where the matter was transferred to the judicial district
of Stamford-Norwalk; thereafter, the court, Hon. Bar-
bara M. Quinn, judge trial referee, granted the respon-
dent’s motion for summary judgment, denied the
petitioner’s motion for summary judgment, and ren-
dered judgment dismissing the habeas petition; subse-
quently, the court denied the petitioner’s motion to
reargue and reconsider, and the petitioner appealed to
this court; thereafter, the court, Hon. Barbara M.
Quinn, judge trial referee, denied the petitioner’s
motions to open judgment and for articulation; subse-
quently, this court granted the petitioner’s motion for
review, but denied the relief requested therein.
Affirmed.
Dana M. Hrelic, with whom were Brendon P. Lev-
esque and, on the brief, Karen L. Dowd, Scott T. Gaross-
hen and Glenn Formica, for the appellant (petitioner).
Michael Besso, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (respondent).
Joshua Michtom, assistant public defender, for the
minor child.
Opinion
BEAR, J. The petitioner, Maria G., appeals from the
trial court’s rendering of summary judgment in favor
of the respondent, the Commissioner of Children and
Families, on the petitioner’s writ of habeas corpus seek-
ing custody of the minor child, Santiago.1 On appeal,
the petitioner claims that the court erroneously failed to
credit a Guatemalan court’s decree, which purportedly
granted her parental guardianship rights over, and cus-
tody of, Santiago, when the court concluded that (1)
public policy prohibited recognition of the decree
because it was premised on a false birth certificate,
and (2) the decree was obtained without notice to the
respondent.2 We affirm the judgment of the court.
The following factual and procedural history is rele-
vant to our disposition of this appeal.3 The petitioner
is a citizen of Argentina and a legal resident of the
United States who resides in Stamford, Connecticut.
Shortly after Santiago’s birth in 2009, the petitioner,
utilizing both a birth certificate that falsely listed her,
and her husband at that time, as Santiago’s parents and
a fraudulent United States passport, illegally brought
him into the United States.4 Santiago remained in the
petitioner’s care until October, 2012, when the Superior
Court, Heller, J., granted the respondent’s motion for
an order of temporary custody. In re Santiago G., 318
Conn. 449, 456–57, 121 A.3d 708 (2015). After initially
removing Santiago to a temporary foster home in
November, 2012, the Department of Children and Fami-
lies (department) placed him in another foster home
in December, 2012, where he remains today. Id., 457.
On November 8, 2013, the petitioner filed a petition
for a writ of habeas corpus seeking to regain custody
of Santiago. The petitioner alleged that the department’s
refusal to release Santiago to her custody violated her
and Santiago’s federal and state constitutional rights to
due process and was contrary to Santiago’s best inter-
est. On July 3, 2014, the respondent filed a motion to
dismiss the petition claiming that the petitioner lacked
standing because she was neither the biological parent
nor a properly declared adoptive parent of Santiago,
and she had not otherwise claimed to be Santiago’s
legal guardian. The petitioner filed an objection to the
motion to dismiss, claiming that on September 19, 2013,
a Guatemalan court had recognized the validity of the
admittedly false birth certificate and, therefore, recog-
nized her as Santiago’s parent. On October 23, 2014,
the court issued a memorandum of decision in which
it found that ‘‘the mere assertion by the petitioner that
she is the legal guardian of the child under [Guatemalan]
law, without more, is insufficient to confer standing.’’
As a result of this finding, the court ordered the peti-
tioner to offer proof, at a preliminary evidentiary hear-
ing on her standing, that she was Santiago’s legal
guardian.
On June 17, 2015, prior to the evidentiary hearing,
Santiago’s biological mother filed a declaratory action
with a Guatemalan court asking the court to grant cus-
tody of Santiago to the petitioner. One day later, on June
18, 2015, the Guatemalan court issued a declaratory
judgment granting the petitioner ‘‘parental rights, cus-
tody, and representation [of Santiago] . . . .’’ The Gua-
temalan court relied on the false birth certificate as
well as an affidavit from Santiago’s biological mother
in granting custody of Santiago to the petitioner.
On November 17, 2015, the court held the evidentiary
hearing. During the hearing, the petitioner submitted a
copy of the judgment file from the Guatemalan court
proceedings as a full exhibit and presented testimony
of the Guatemalan attorney who had represented Santi-
ago’s biological mother regarding the Guatemalan
court’s decree. The court subsequently allowed both
parties to file posthearing briefs. The respondent argued
in her brief that the Guatemalan decree did not deserve
recognition by Connecticut courts because (1) the pro-
cess underlying that decree contained procedural irreg-
ularities fatal to recognition, and (2) the substance of
the decree was based on an admittedly false birth cer-
tificate.
The court, Colin, J., rendered its decision on Febru-
ary 16, 2016, and found that the petitioner had estab-
lished prima facie evidence of her standing,5 but noted
that ‘‘[t]he determination that a prima facie case has
been established in denying a motion to dismiss does
not necessarily mean that the court, at the time of the
final hearing on the merits, is required to take as true
the evidence offered by the petitioner at the standing
hearing.’’ On March 7, 2016, the respondent filed a
motion to reargue. The court thereafter granted the
respondent’s motion in part, denied it in part, and reaf-
firmed its decision on the issue of standing.
The parties subsequently filed separate motions for
summary judgment. The petitioner argued in her motion
that the court’s previous recognition of prima facie evi-
dence of standing established that there was no genuine
issue of material fact as to the petitioner’s legal right
to custody of Santiago. The respondent argued in her
motion that the Guatemalan court decree was not enti-
tled to recognition because it was based on a false birth
certificate, and notice of the Guatemalan proceedings
had not been provided to the respondent.
On January 12, 2017, the court granted the respon-
dent’s motion for summary judgment, denied the peti-
tioner’s motion for summary judgment, and dismissed
the habeas petition.6 In rendering its decision, the court
applied the Uniform Child Custody Jurisdiction and
Enforcement Act, General Statutes § 46b-115 et seq.
(act), and determined that the Guatemalan court decree
was not entitled to recognition because it was based
on the petitioner’s fraudulent and illegal conduct that
was repugnant to the public policy of this state, it relied
on the false birth certificate, and it was secured without
adequate notice to the respondent. The court, therefore,
concluded that the petitioner could not demonstrate
that she is the biological parent or legal guardian of
Santiago and dismissed the habeas petition. On Febru-
ary 1, 2017, the petitioner filed a motion to reargue,
and the court reaffirmed its decision on June 20, 2017.
See footnote 1 of this opinion. This appeal followed.7
We first set forth the applicable standard of review.
‘‘Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary. . . . In seek-
ing summary judgment, it is the movant who has the
burden of showing the nonexistence of any issue of
fact. The courts are in entire agreement that the moving
party for summary judgment has the burden of showing
the absence of any genuine issue as to all the material
facts, which, under applicable principles of law, entitle
him to a judgment as a matter of law. The courts hold
the movant to a strict standard. To satisfy his burden
the movant must make a showing that it is quite clear
what the truth is, and that excludes any real doubt as
to the existence of any genuine issue of material fact.
. . . As the burden of proof is on the movant, the evi-
dence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving party has no obligation to submit documents
establishing the existence of such an issue. . . . Once
the moving party has met its burden, however, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.’’
(Citation omitted; internal quotation marks omitted.)
Rickel v. Komaromi, 144 Conn. App. 775, 779–80, 73
A.3d 851 (2013).
I
The petitioner claims that the same evidence used
by the court to rule in her favor on the motion to dismiss
also established, at the very least, a genuine issue of
material fact that precluded the court from granting the
respondent’s motion for summary judgment. Specifi-
cally, the petitioner argues that, despite the admittedly
false birth certificate, the Guatemalan court’s decree
created a genuine issue of material fact that she was the
legal guardian or custodian of Santiago. The respondent
claims that the court properly determined that there
was no genuine issue of material fact that the Guatema-
lan decree was not entitled to recognition, arguing that
the petitioner’s participation in the fraud regarding the
birth certificate made enforcement of the decree repug-
nant to the public policy of this state.
We first note that the false birth certificate cannot be
the basis for the petitioner’s claim for custody because it
clearly was fraudulent, and the petitioner has conceded
that the birth certificate falsely listed her and her former
husband as Santiago’s biological parents. Moreover, our
Supreme Court determined that the birth certificate has
no legal effect in the United States. See In re Santiago
G., supra, 318 Conn. 471–72 (‘‘[A]lthough [the peti-
tioner] was in possession of a birth certificate naming
her as Santiago’s mother, she ultimately conceded that
that birth certificate was fraudulent. As we previously
have explained, [a] birth certificate is a vital record
that must accurately reflect legal relationships between
parents and children—it does not create those relation-
ships. . . . In sum, it was absolutely correct that Santi-
ago had no legal guardian in the United States, and
neither the parties nor the court was mistaken in this
regard.’’ [Citation omitted; internal quotation marks
omitted.]).
The crux of the petitioner’s claim, therefore, is that,
despite the previous ruling of our Supreme Court
acknowledging the fraudulent nature of the birth certifi-
cate, the Guatemalan court’s decree was entitled to
recognition under the rules of comity, and summary
judgment in favor of the respondent should not have
been rendered because there was a genuine issue of
material fact as to whether the decree was obtained
by fraud.
‘‘[C]omity is a flexible doctrine, the application of
which rests in the discretion of the state where enforce-
ment of a foreign order is sought. . . . The doctrine
traces its roots to the decision of the United States
Supreme Court in Hilton v. Guyot, 159 U.S. 113, 16 S.
Ct. 139, 40 L. Ed. 95 (1895), which observed that [c]omity
. . . is the recognition which one nation allows within
its territory to the legislative, executive or judicial acts
of another nation, having due regard both to interna-
tional duty and convenience, and to the rights of its
own citizens or of other persons who are under the
protection of its laws. . . . [W]here there has been
opportunity for a full and fair trial abroad before a court
of competent jurisdiction, conducting the trial upon
regular proceedings, after due citation or voluntary
appearance of the defendant, and under a system of
jurisprudence likely to secure an impartial administra-
tion of justice between the citizens of its own country
and those of other countries, and there is nothing to
show either prejudice in the court, or in the system
of laws under which it was sitting, or fraud in procur-
ing the judgment, or any other special reason why the
comity of this nation should not allow it full effect,
the merits of the case should not, in an action brought
in this country upon the judgment, be tried afresh, as
on a new trial or an appeal, upon the mere assertion
of the party that the judgment was erroneous in law or
in fact.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Zitkene v. Zitkus, 140 Conn.
App. 856, 865–66, 60 A.3d 322 (2013).
‘‘[J]udgments of courts of foreign countries are recog-
nized in the United States because of the comity due
to the courts and judgments of one nation from another.
Such recognition is granted to foreign judgments with
due regard to international duty and convenience, on
the one hand, and to rights of citizens of the United
States and others under the protection of its laws, on
the other hand. This principle is frequently applied in
divorce cases; a decree of divorce granted in one coun-
try by a court having jurisdiction to do so will be given
full force and effect in another country by comity . . . .
The principle of comity, however, has several important
exceptions and qualifications. A decree of divorce will
not be recognized by comity where it was obtained by
a procedure which denies due process of law in the
real sense of the term, or was obtained by fraud, or
where the divorce offends the public policy of the state
in which recognition is sought . . . .’’ (Emphasis
added.) Litvaitis v. Litvaitis, 162 Conn. 540, 544–45,
295 A.2d 519 (1972); Zitkene v. Zitkus, supra, 140 Conn.
App. 866.
In addition to the doctrine of comity, the act, as
adopted in § 46b-115ii, provides that ‘‘[a] court of this
state shall treat a foreign child custody determination8
made under factual circumstances in substantial con-
formity with the jurisdictional standards of this chapter,
including reasonable notice and opportunity to be
heard to all affected persons, as a child custody determi-
nation of another state under sections 46b-115 to 46b-
115t, inclusive, unless such determination was rendered
under child custody law which violates fundamental
principles of human rights or unless such determina-
tion is repugnant to the public policy of this state.’’
(Emphasis added; footnote added.) This court has rec-
ognized that the prevention of fraud is an important
public policy. ‘‘The important public policy we identify
is the one against fraud, which is deeply rooted in our
common law . . . .’’ Schmidt v. Yardney Electric
Corp., 4 Conn. App. 69, 74, 492 A.2d 512 (1985); see
also Broome v. Beers, 6 Conn. 198, 210–12 (1826).
The petitioner admitted to investigators from the
department and the United States Department of Home-
land Security that she brought Santiago into the country
illegally with a false birth certificate and a fraudulent
passport, and she subsequently pleaded guilty to a fed-
eral felony in connection with the fraudulent passport.
In re Santiago G., supra, 318 Conn. 460–61. Addition-
ally, the petitioner does not dispute that the Guatemalan
court relied on the same false birth certificate in issuing
its judgment confirming the petitioner’s parental guard-
ianship rights to Santiago. The trial court also listed
the following undisputed facts set forth in the petition:
‘‘The petitioner is a citizen of Argentina and a legal
resident of the United States . . . . [The] Guatemalan
birth certificate identifies the petitioner and her
estranged husband as the child’s parents. She brought
him to the United States shortly after his birth. . . .
She admitted that she obtained custody of a newborn
that was not legally adopted and that she illegally
brought the child into the United States with a false birth
certificate and a fraudulent United States passport.’’
(Footnote omitted.)
The petitioner, however, presented additional evi-
dence during the summary judgment proceeding that
she had disclosed to the Guatemalan court that she
was not Santiago’s biological mother, and that the birth
certificate was falsified. This included the sworn affida-
vit of Santiago’s biological mother, as well as DNA evi-
dence confirming that the petitioner was not Santiago’s
biological mother. The respondent, in the summary
judgment proceeding, did not submit any contrary evi-
dence that the petitioner made false representations to
the Guatemalan court about those matters. Construing
the evidence in the light most favorable to the peti-
tioner, a factfinder could conclude that by providing
such information to the Guatemalan court, she was
attempting to correct her earlier fraud and have the
Guatemalan court, after considering all of the evidence,
confirm that the birth certificate, despite its factual
flaws, was entitled to legal recognition under Guatema-
lan law. Because the facts relied upon by the petitioner
regarding the Guatemalan court proceedings are undis-
puted, the remaining legal issue is whether the Guate-
malan decree, like the birth certificate on which it is
based, is void as against Connecticut public policy as
found by the trial court.
The petitioner argues that the respondent failed to
satisfy her burden of proof on summary judgment that
there was no genuine issue of material fact that the
Guatemalan decree was not entitled to recognition
under comity. Specifically, the petitioner argues that
there is a genuine issue of material fact as to whether
the Guatemalan court could conclude that she still had
parental rights to Santiago, ‘‘despite the initial misrepre-
sentation that she was Santiago’s biological mother.’’9
We conclude, however, that this purported genuine
issue of material fact is in reality a legal question about
the enforcement of the Guatemalan court decree in
Connecticut. On appeal, the petitioner relies on the
Guatemalan court decree to satisfy the legal guardian-
ship requirement of Connecticut law, and asks that we
recognize that decree through the principle of comity.
In Connecticut, a petitioner in a habeas corpus peti-
tion for custody of a child, in order to set forth a cogniza-
ble claim, must establish that she is the child’s biological
parent, his adoptive parent through a proper adoption,
or his legal guardian through a recognized court proce-
dure. See Weidenbacher v. Duclos, 234 Conn. 51, 62–63,
661 A.2d 988 (1995). In Livaitis, another family law
case, our Supreme Court stated that a foreign decree
‘‘will not be recognized by comity where it was obtained
by a procedure which denies due process of law in the
real sense of the term, or was obtained by fraud, or
where the [decree] offends the public policy of the state
in which recognition is sought, or where the foreign
court lacked jurisdiction.’’ Litvaitis v. Litvaitis, supra,
162 Conn. 545.
In the present case, the trial court stated that our
law does not permit those who engage in fraud to bene-
fit from that fraud, and that the petitioner’s fraudulent
conduct ‘‘attack[ed] the very core of the court’s inherent
integrity.’’ Thus, the court concluded that the Guatema-
lan decree, having been ‘‘obtained by fraud, or where
[it] offends the public policy of the state in which recog-
nition is sought’’; id.; was not entitled to recognition
under the general rules of comity or under the specific
requirements of the act.
In In re Santiago G., supra, 318 Conn. 474–75, our
Supreme Court reflected upon the unusual factual cir-
cumstances of this case and the unfortunate results
that occurred from the choices of the petitioner and
her former husband: ‘‘As a final matter, we must reject
the suggestion of the parties that the highly unusual
facts of this case warranted a disregard of the typical
procedures attendant to a motion to revoke commit-
ment, in favor of some alternative approach more suited
to the circumstances. The problem here is not so much
that the statutory framework is inadequate, but that it
was not designed to accommodate individuals who have
chosen to operate outside of the strictures of the law,
regardless of their reasons. It was because the [biologi-
cal mother] and [the petitioner] knowingly agreed to
effectuate an illegal international adoption that [the
petitioner] was vulnerable to the cruel act of a vindictive
individual . . . and all of the subsequent occurrences
that that act set in motion. Because [the petitioner]
lacked the status of a legal parent, she also lacked
the constitutional and statutory rights attendant to that
status. Additionally, the illegalities involved in [the peti-
tioner] obtaining Santiago and transporting him, using
a fraudulent passport, to the United States resulted in
significant delay in the discernment of the truth, during
which the interests of Santiago in stability and perma-
nency began to diverge, as it turns out inexorably, from
the interests of the [biological mother] and [the peti-
tioner]. We say this not to chastise or lay blame, but
rather, to explain that the law is ill equipped to save
those who have chosen to disregard it.’’ (Footnote
omitted.)
At the time of its consideration of the summary judg-
ment motions, the court had before it the petitioner’s
admissions and our Supreme Court’s recognition that
the birth certificate relied on by the Guatemalan court
had knowingly been instigated and procured by the
petitioner and her former husband, with the coopera-
tion of the biological mother, who had consented to
them being listed as the biological parents although that
was false. The court did not err in rendering summary
judgment in favor of the respondent, who had met her
burden of establishing the lack of any factual dispute
concerning the invalidity of the Guatemalan court
decree which was admittedly based, at least in part, on
the false birth certificate.10
In the present case, the petitioner merely refers to
the court’s finding after the evidentiary hearing on the
motion to dismiss that there was some factual dispute
as to the propriety of the Guatemalan court decree.
This court has found, however, that ‘‘[i]t is not enough
. . . for the opposing party [to a motion for summary
judgment] merely to assert the existence of such a dis-
puted issue. Mere assertions of fact . . . are insuffi-
cient to establish the existence of a material fact and,
therefore, cannot refute evidence properly presented
to the court under Practice Book § [17-45].’’ (Internal
quotation marks omitted.) Rickel v. Komaromi, supra,
144 Conn. App. 780. Moreover, ‘‘[i]t is well recognized
that courts will not lend their assistance to enforce
agreements whose inherent purpose is to violate the
law . . . even to reach what appears to be an equitable
result. . . . Generally, agreements contrary to public
policy, that is, those that negate laws enacted for the
common good, are illegal and therefore unenforceable.’’
(Citations omitted; internal quotation marks omitted.)
In re Santiago G., supra, 318 Conn. 475 n.17.
As our Supreme Court found, ‘‘[the petitioner] and
[Santiago’s biological mother] knowingly agreed to
engage in a subterfuge to evade the strictures of [fed-
eral] adoption laws and achieve more expeditiously
their own goals, albeit admirable ones.’’ Id. Our
Supreme Court further recognized that accepting the
wishes of the petitioner and the biological mother as
to who Santiago’s mother should be would be tanta-
mount to enforcing the illegal agreement between them
and would be, therefore, ‘‘contrary to the public policies
underlying the adoption laws of both this country and
of Guatemala.’’ Id.
In light of the fact that the petitioner’s claim is prem-
ised upon the false birth certificate admittedly insti-
gated and procured by the petitioner and her former
husband, with the cooperation of the biological mother,
who knew the untruthfulness of its content, we agree
with the trial court that enforcement of the Guatemalan
court’s decree, which is based, at least in part, on the
false birth certificate, is contrary to this state’s public
policy as a matter of law. Accordingly, we conclude
that the trial court, in construing the evidence in a light
most favorable to the petitioner, properly concluded
that the Guatemalan court’s reliance on the fraudulently
obtained birth certificate and Santiago’s biological
mother’s sworn affidavit, in which she avers that she
conferred legal authority to the petitioner over Santi-
ago, did not require its judgment to be enforced as a
matter of comity.
II
Additionally, the petitioner argues that the Guatema-
lan proceedings were adequately noticed or, at the very
least, there was a genuine issue of material fact that
adequate notice was provided. The petitioner asserts
that, given the respondent’s representations to the trial
court at the June 3, 2015 hearing prior to the evidentiary
hearing on the motion to dismiss,11 it is apparent that
the respondent had actual notice of the Guatemalan
proceedings. The respondent replies that the Guatema-
lan judgment does not warrant recognition because
there existed no genuine issue of material fact that
adequate notice of the pendency of the Guatemalan
proceedings was not provided.12
As previously discussed, § 46b-115ii treats all foreign
child custody determinations as child custody determi-
nations of another state under §§ 46b-115 to 46b-115t,
inclusive, and, accordingly, affords all parties affected
by a foreign child custody determination ‘‘reasonable
notice and an opportunity to be heard.’’ Section 46b-
115o (a) provides that ‘‘[b]efore a child custody determi-
nation is made under this chapter, notice and an oppor-
tunity to be heard in accordance with the standard
established in section 46b-115g shall be given to the
parties, any parent whose parental rights have not been
previously terminated and any person who has physical
custody of the child.’’
Additionally, General Statutes § 46b-115g (a) pro-
vides that ‘‘[n]otice required for the exercise of jurisdic-
tion over a person outside this state shall be given in
a manner reasonably calculated to give actual notice,
and may be: (1) By personal delivery outside this state
in the manner prescribed for service of process within
this state; (2) in the manner prescribed by the law of
the place in which the service is made for service of
process in that place in an action in any of its courts
of general jurisdiction; (3) any form of mail addressed
to the person to be served and requesting a receipt; or
(4) as directed by the court including publication, if
other means of notification are ineffective.’’ Moreover,
‘‘[t]hese methods are not exclusive. Any method of serv-
ing notice may be employed as long as it is given in a
manner reasonably calculated to give actual notice and
meets due process requirements as they exist at the time
of the proceeding.’’ (Internal quotation marks omitted.)
Hurtado v. Hurtado, 14 Conn. App. 296, 306–307, 541
A.2d 873 (1988).
The petitioner argues that the colloquy between the
respondent and the trial court on June 3, 2015, estab-
lishes that, at the very least, a genuine issue of material
fact exists as to whether the respondent was provided
with notice of the Guatemalan proceedings. The Guate-
malan declaratory action, however, was not filed until
June 17, 2015, and a hearing was held the next day on
June 18, 2015. The respondent could not have been
provided with notice of the proceedings prior to June
17, 2015, because the action had not yet been filed. If
the petitioner knew on June 3, 2015, that a petition for
custody and legal guardianship was going to be filed
in the Guatemalan court on June 17, 2015, that filing
was not disclosed to the court and the parties at the
preevidentiary hearing, and no documents relating to
the planned filing were provided at such hearing. More-
over, the petitioner does not dispute that notice to the
respondent, as described in § 46b-115g (a), was not
provided in the period between the filing of the proceed-
ing and when the hearing took place one day later. As
such, we conclude that the respondent met her burden
of establishing that there was no genuine issue of mate-
rial fact that adequate notice was not provided pursuant
to § 46b-115ii.
III
In sum, the petitioner has not established that there
is any genuine issue of material fact that the court
erroneously failed to accept and apply a Guatemalan
court’s decree, purportedly granting her parental guard-
ianship rights over, and custody of, Santiago, on the
grounds set forth in her appeal, i.e., that the court erro-
neously concluded that (1) public policy prohibited rec-
ognition of a decree premised on a false birth certificate,
and (2) the decree was obtained without proper notice
to the respondent. The court properly ruled as a matter
of law that such decree was against the public policy
of, and not entitled to be enforced in, Connecticut. The
court also correctly determined that any notice of the
Guatemalan proceedings that was provided to the
respondent was insufficient as a matter of law.
Because we conclude that there was no genuine issue
of material fact that the Guatemalan decree was not
entitled to recognition in Connecticut, and that the
respondent was entitled to summary judgment as a
matter of law, we conclude that the trial court properly
granted the respondent’s motion for summary judgment
and dismissed the petitioner’s habeas corpus petition.
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.
1
Both parties have at times referred to the trial court’s rendering of
summary judgment as premised on the petitioner’s lack of standing to bring
the habeas petition. The trial court, however, did not make reference to
any standing issue in its memorandum of decision. In its memorandum of
decision on the petitioner’s motion to reargue her motion for summary
judgment, the court set forth that it previously had concluded that the
petitioner’s prima facie claim of standing could not form a basis for the
finding, without more, that a 2015 Guatemalan decree conclusively awarded
custody to her and must be recognized. In that memorandum, the court also
rejected the petitioner’s claim under the Hague Convention first mentioned
in her motion for summary judgment.
The court’s conclusion in its memorandum of decision rendering summary
judgment was as follows: ‘‘If neither the birth certificate nor the 2015 decree
purporting to award the petitioner parental guardianship and custody can
be legally recognized, the crux of the habeas claim cannot be proven. If the
gravamen of a habeas petition is that the petitioner must establish that she
is the parent or the legal guardian of the child she seeks, then [Maria G.]
cannot establish her claim under any set of facts she has brought forth. The
respondent has demonstrated through counteraffidavits, other submissions,
and the law a legally sufficient defense to this action. Summary judgment
in favor of the defendant is properly granted if the defendant in its motion
raises at least one legally sufficient defense that would bar the plaintiff’s
claim and involves no triable issue of fact. . . . The court finds that there
remains no triable issue of fact and the petitioner’s request for relief therefore
fails.’’ (Citation omitted; internal quotation marks omitted.) The court,
accordingly, dismissed the petition for a writ of habeas corpus.
2
The petitioner’s table of contents in her brief before this court includes
the following: ‘‘I. Where the trial court previously found that the evidence
established that the 2015 Guatemalan proceedings were proper at an eviden-
tiary hearing on that very issue, the trial court erred in then discrediting
that evidence at summary judgment and holding that they were indisputably
improper. A. Comity generally requires recognition of foreign court proceed-
ings. B. As a matter of law, the 2015 Guatemalan judgment was not obtained
by fraud or, at the very least, there was a genuine issue of material fact on
that issue. C. As a matter of law, the 2015 Guatemalan court proceedings
were adequately noticed or, at the very least, there was a genuine issue of
material fact on that issue.’’
3
A thorough factual and procedural background of the proceedings con-
cerning Santiago is provided in In re Santiago G., 154 Conn. App. 835, 108
A.3d 1184, aff’d, 318 Conn. 449, 121 A.3d 708 (2015), and In re Santiago G.,
325 Conn. 221, 157 A.3d 60 (2017). In In re Santiago G., supra, 154 Conn. App.
861, this court affirmed the judgment of the trial court denying Santiago’s
biological mother’s motion to revoke the commitment of her minor child
to the respondent. Our Supreme Court affirmed that decision in In re Santi-
ago G., supra, 318 Conn. 449, 475, 121 A.3d 708 (2015). The petitioner had
filed a motion to intervene in those proceedings, which the trial court denied.
Id., 457 n.4. In In re Santiago G., supra, 325 Conn. 223, 236, the petitioner
appealed from the judgment of the trial court denying her motion to intervene
as of right and permissively, and our Supreme Court dismissed that appeal
for lack of subject matter jurisdiction.
In the present case, the trial court stated that ‘‘[m]any of the underlying
facts in this matter are not in dispute; rather, it is the legal import of the
uncontested crucial facts and documents which are at issue in both [sum-
mary judgment] motions.’’
4
On April 16, 2013, the petitioner pleaded guilty to a federal felony in
connection with her bringing Santiago into the country illegally with forged
documents and, as part of her sentence, she was to be deported to Argentina.
In re Santiago G., 318 Conn. 449, 460–61, 121 A.3d 708 (2015).
5
Specifically, the court found the following facts sufficient to establish
standing: ‘‘(1) [T]he now adult biological mother of the child has formally
requested through the Guatemalan court that the petitioner have custody
of her child; (2) a family court in Guatemala granted that request in [June,
2015]; (3) the child was raised in Stamford, Connecticut by the habeas
petitioner from the child’s birth in [2009] until [the department] removed
the child from the petitioner’s custody in October, 2012; and (4) the juvenile
court on September 9, 2013, noted that ‘[the petitioner] is the only mother that
[Santiago] has known, and she is unquestionably his psychological mother.’ ’’
6
The court subsequently filed a corrected memorandum of decision on
January 26, 2017, to address several minor errors, leaving the substance of
its decision intact.
7
On August 4, 2017, during the pendency of this appeal, the petitioner
filed a motion for articulation, requesting that the trial court articulate
whether it found that she lacked standing to bring the habeas petition,
and, if so, that the court state the factual and legal basis for its holding.
Additionally, on October 20, 2017, the petitioner filed a motion to open
the judgment.
On March 15, 2018, the trial court denied the petitioner’s motion to open
judgment. On March 16, 2018, the trial court denied the motion for articula-
tion, concluding that ‘‘[t]he interpretation of the decision and the logical
conclusions to be drawn from it are within the purview of the appellant
and need not be provided by the court.’’ The petitioner subsequently filed
a motion for review of the trial court’s decision, and this court granted the
motion for review but denied the requested relief.
8
General Statutes § 46b-115hh provides in relevant part that ‘‘ ‘[f]oreign
child custody determination’ means any judgment, decree or other order of
a court or tribunal of competent jurisdiction of a foreign state providing
for legal custody, physical custody or visitation with respect to a child. . . .’’
9
The petitioner alleged in her petition that Santiago is her legal child.
She, however, has not disputed that she is not Santiago’s biological mother,
and she has relied at various stages of this continuing litigation on the
support of the biological mother.
10
Our Supreme Court has noted the mischief that could occur because
of a false birth certificate: ‘‘We also reject the claim of the plaintiff and the
child’s attorney that the child’s birth certificate conclusively established
that the plaintiff is her mother. One does not gain parental status by virtue
of false information on a birth certificate. See Remkiewicz v. Remkiewicz,
[180 Conn. 114, 120, 429 A.2d 833 (1980)] (‘[i]f a stepfather could acquire
parental rights through the simple expedient of changing his stepchild’s
birth certificate, all sorts of mischief could result’).’’ Doe v. Doe, 244 Conn.
403, 446, 710 A.2d 1297 (1998).
11
Specifically, the petitioner directs this court to the following colloquy
that occurred between the respondent and the court at the June 3, 2015
hearing:
‘‘[The Respondent]: [W]ithin the past week, and this is not a representation
from [the petitioner’s counsel], there is a pending court matter in Guate-
mala by which they anticipate a judge in Guatemala . . . is considering
and might very well grant an order in Guatemala in effect validating or
ratifying the custodial placement of the child with [the petitioner].
‘‘If that were true and if that were to come to pass, I would anticipate
that the department would withdraw its standing objection so at least we
would get past that and the court would be able to consider the merits.
‘‘I can’t represent to the court what the department’s ultimate position
would be, but since we are only at the standing stage, if [the petitioner’s
counsel] were to make those representations to the court and in fact he led
me to believe he’d actually be asking for a . . . continuance to attempt to
secure confirmation of this new order from Guatemala . . . .’’ (Empha-
sis added.)
When the court asked the respondent what action to take while waiting
for the petitioner’s counsel to ask for a continuance of the evidentiary
hearing, the respondent stated that it ‘‘would not also be adverse to the
court on its own sua sponte issuing a continuance pending a report from
[the petitioner’s counsel] about the status of this purported new Guatemalan
order . . . which might very well lead to the department withdrawing its
standing objection.’’ (Emphasis added.) The court then replied that the
future ‘‘evidentiary hearing may also involve the issue of what if any recog-
nition this court should give to any order entered by the court in Guatemala
and how such an order if it exists is impacted by any other orders concerning
custody . . . .’’ (Emphasis added.)
After the court decided it would leave it to either of the parties to request
a continuance date, the respondent stated: ‘‘I would rather not . . . ask for
a necessary date because I think [the petitioner’s counsel] would like the
opportunity to work out the details from Guatemala and I don’t know
while he is hopeful that will happen soon . . . .’’ (Emphasis added.)
12
The respondent first raised the notice argument in her objection to the
petitioner’s motion for summary judgment.