In re Paul M. , 148 Conn. App. 654 ( 2014 )

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IN RE PAUL M., JR.*
(AC 35856)
DiPentima, C. J., and Alvord and Bear, Js.
Argued January 7—officially released February 26, 2014**
(Appeal from Superior Court, judicial district of New
Haven, Juvenile Matters, Brown, J.)
Michael D. Day, assigned counsel, for the appellant
(respondent father).
Susan T. Pearlman, assistant attorney general, with
whom were Benjamin Zivyon, assistant attorney gen-
eral, and, on the brief, George Jepsen, attorney general,
for the appellee (petitioner).
Peter K. Manko, for the minor child.
Opinion
DiPENTIMA, C. J. The respondent father appeals
from the granting of the motion to cease reunification
efforts filed by the petitioner, the Commissioner of Chil-
dren and Families. The respondent’s sole claim on
appeal is that the court’s finding that he had abandoned
his minor child, Paul M., Jr., was clearly erroneous. We
disagree, and, accordingly, affirm the judgment of the
trial court.
On June 10, 2013, the petitioner filed a motion to
cease reunification efforts pursuant to General Statutes
§ 17a-111b (b). In the motion, the petitioner alleged that
the respondent ‘‘had subjected the [Paul M., Jr.] to the
aggrieved circumstances of abandonment as defined
in subsection (j) of [General Statutes] § 17a-112. The
[respondent] abandoned the child at the home of an
acquaintance on or about January 8, 2013, and report-
edly fled the jurisdiction to avoid prosecution regarding
the violation of the conditions of his probation. [The
respondent] was recently picked up on the outstanding
warrant in Lake George, New York, and returned to
Connecticut to face his outstanding charges. He did not
return voluntarily, nor did he contact [the Department
of Children and Families (department)] at any time to
inquire as to the well-being of his child during his
absence.’’
On June 24, 2013, the court held a hearing on the
petitioner’s motion1 and heard testimony from three
witnesses. Patricia Belin, a probation officer in the
Intensive Sex Offender Unit, testified that she had
supervised the respondent for the past two years.2 The
conditions of the respondent’s probation included no
contact with minors under the age of sixteen other than
Paul M., Jr. (child), who was born in 2010, and that he
refrain from consuming alcohol or using a computer to
access pornographic websites, dating websites or any
social networking on the Internet. Belin stated that she
made a referral to the department on December 28,
2012, after receiving information from the New Haven
and Meriden Police Departments that the respondent
was violating his probation by being with his other son,
a fifteen year old, and being under the influence of
alcohol. Belin also learned that the respondent had
attempted to walk home from Meriden to New Haven
after 11 p.m. with the child and while under the influ-
ence of alcohol. Belin also indicated that she had
received information that the respondent was using his
computer in violation of his conditions of probation,
and that police had been to his home for domestic
issues. As a result of these events, Belin was pursuing
the possibility of submitting a warrant for his arrest for
violating his probation. Belin also attempted to visit the
respondent at his home, when she learned that the
respondent had fled with the child on January 4, 2013.3
In an effort to locate the respondent, who has a his-
tory of mental health issues, and the child, Belin spoke
with multiple family members. Additionally, a ‘‘Silver
Alert’’4 was issued, which resulted in further informa-
tion to assist in locating the respondent. The respondent
telephoned Belin and stated that he was aware of the
arrest warrant and that he was not taking his medication
for his mental health issues. On January 9, 2013, the
respondent stated that the child was located in Ansonia,
and members of the New Haven Police Department
retrieved him after finding him in a malnourished, dehy-
drated and disoriented state. The child was placed in
a foster home. The respondent refused requests from
the police to turn himself in.
Belin testified that the respondent was taken into
custody in Lake George, New York, on May 29, 2013.
During the time period from January 9, 2013 to May
29, 2013, she received one communication from the
respondent and he did not inquire about the well-being
of the child.
Julie Dixon, a social worker employed by the depart-
ment, also testified at the hearing and stated that she
became involved with this child on January 28, 2013.
She stated that the respondent telephoned her in March
and told her that he was in violation of his probation and
that he had not been taking his medication. According to
Dixon, the respondent did not ask about the welfare
of the child, and the child did not receive any cards,
gifts, or financial support from the respondent. Follow-
ing his arrest, the respondent called Dixon on June 3,
2013, and requested to visit with the child.
The respondent also testified at the evidentiary hear-
ing and asserted that he was the sole legal guardian
and custodian of the child. He claimed that the child’s
maternal grandmother and a female friend had kept
him apprised of the child’s well-being. He also disputed
Dixon’s testimony and stated that he had asked Dixon
about the child. The respondent informed the court that
he had lacked the financial resources to send any type
of card, letter or gift to the child during his absence
from Connecticut.
At the conclusion of the hearing, the court found that
the respondent had absconded from Connecticut during
the time period of early January to late May, 2013, and
that he failed to provide any information as to how he
could be reached. The court further found that any
sporadic showing of an indicia of interest in the child
did not amount to a continuing or maintained degree
of interest as required by §§ 17a-111b (a) and 17a-112
(j) and case law. Ultimately, the court found, by clear
and convincing evidence, that the respondent had not
maintained a reasonable degree of responsibility as to
the welfare of the child. Accordingly, it granted the
petitioner’s motion to cease reunification efforts.5 This
appeal followed.6
I
As a threshold matter, we must decide, sua sponte,7
whether the granting of a motion to cease reunification
constitutes a final judgment in order to determine
whether we have jurisdiction to review the merits of
the respondent’s appeal. See Putman v. Kennedy, 279
Conn. 162, 167–68 n.9, 900 A.2d 1256 (2006); Sullivan
v. Brown, 116 Conn. App. 660, 661–62, 975 A.2d 1289,
cert. denied, 294 Conn. 914, 983 A.2d 852 (2009). We
conclude that the granting of such a motion constitutes
a final judgment for purposes of an appeal because it
satisfies the second prong of the test set forth in State
v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).
‘‘The lack of a final judgment implicates the subject
matter jurisdiction of an appellate court to hear an
appeal. A determination regarding . . . subject matter
jurisdiction is a question of law . . . . The jurisdiction
of the appellate courts is restricted to appeals from
judgments that are final. . . . The policy concerns
underlying the final judgment rule are to discourage
piecemeal appeals and to facilitate the speedy and
orderly disposition of cases at the trial court level. . . .
The appellate courts have a duty to dismiss, even on
[their] own initiative, any appeal that [they lack] juris-
diction to hear.’’ (Citations omitted; internal quotation
marks omitted.) DeCorso v. Calderaro, 118 Conn. App.
617, 624, 985 A.2d 349 (2009), cert. denied, 295 Conn.
919, 991 A.2d 564 (2010); see also State v. Fielding, 296
Conn. 26, 35–36, 994 A.2d 96 (2010).
Our Supreme Court has stated that ‘‘the courts may
deem interlocutory orders or rulings to have the attri-
butes of a final judgment if they fit within either of the
two prongs of the test set forth in State v. Curcio, [supra,191 Conn. 31]. . . . Under Curcio, the landmark case
in the refinement of final judgment jurisprudence . . .
interlocutory orders are immediately appealable if the
order or ruling (1) terminates a separate and distinct
proceeding or (2) so concludes the rights of the parties
that further proceedings cannot affect them.’’ (Citations
omitted; internal quotation marks omitted.) Abreu v.
Leone, 291 Conn. 332, 338–39, 968 A.2d 385 (2009); see
Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646,
652–53, 954 A.2d 816 (2008); see also Madigan v. Madi-
gan, 224 Conn. 749, 753, 620 A.2d 1276 (1993) (Curcio
provides standard to evaluate judgments that lie in grey
area between those that are undoubtedly final and those
that are clearly interlocutory).
We also are mindful that our Supreme Court has
acknowledged the unique place that family court pro-
ceedings hold in our jurisprudence. ‘‘This court has a
long history of concluding that, within the context of
family matters, orders that would otherwise be consid-
ered interlocutory constitute appealable final judg-
ments. . . . Taken as a whole, these cases demonstrate
that, [o]n balance, we [have been] more persuaded by
the rationale for allowing an immediate appeal of . . .
temporary . . . order[s] [in family matters] than by the
traditional reasons of judicial economy that might oth-
erwise have precluded [their] review. . . . Although
some of the cases allowed an appeal in order to ensure
that the important rights surrounding the parent-child
relationship are adequately protected . . . others
allowed an immediate appeal because the contempt
order required the aggrieved party to engage in some
coercive action, such as paying money that could not be
recovered on a subsequent appeal.’’ (Citations omitted;
internal quotation marks omitted.) Khan v. Hillyer, 306
Conn. 205, 213–14, 49 A.3d 996 (2012).
We turn our inquiry to the applicable Curcio prong.
‘‘The second prong of the Curcio test focuses on the
nature of the right involved. It requires the parties seek-
ing to appeal to establish that the trial court’s order
threatens the preservation of a right already secured
to them and that right will be irretrievably lost and the
[parties] irreparably harmed unless they may immedi-
ately appeal. . . . One must make at least a colorable
claim that some recognized statutory or constitutional
right is at risk. . . . Moreover, when a statute vests the
trial court with discretion to determine if a particular
[party] is to be accorded a certain status, the [party]
may not invoke the rights that attend the status as a
basis for claiming that the court’s decision not to confer
that status deprives the [party] of protections to which
[it] is entitled. . . . The right itself must exist indepen-
dently of the order from which the appeal is taken.’’
(Citation omitted; internal quotation marks omitted.)
Abreu v. Leone, supra, 291 Conn. 339–40; see also State
v. Fielding, supra, 296 Conn. 37–38.
Section 17a-111b (a) provides in relevant part: ‘‘The
[petitioner] shall make reasonable efforts to reunify a
parent with a child . . . .’’ As a general matter, this
statute entitles the respondent and the child to reason-
able reunification efforts made by the petitioner until
such efforts are no longer required as set forth in § 17a-
111b (a) (1) and (2).8 See, e.g., In re Jorden R., 293
Conn. 539, 554, 979 A.2d 469 (2009) (§ 17a–112 [j] begins
with presumptive obligation that department make rea-
sonable reunification efforts, it later excuses this obliga-
tion in cases when trial court finds that parent is unable
or unwilling to benefit from such efforts); In re Albert
M., 124 Conn. App. 561, 562, 6 A.3d 815 (to protect
constitutional rights of parent to raise children, depart-
ment required to make reasonable efforts to reunify
child with parents prior to filing petition for termination
of parental rights), cert. denied, 299 Conn. 920, 10 A.3d
1050 (2010). That statutory right to receive services
from the state to facilitate reunification was ended as
a result of the granting of the petitioner’s motion to
cease reunification efforts pursuant to § 17a-111b (b)
(1) (A). The basis for ending reunification efforts by the
petitioner was the court’s finding, after the evidentiary
hearing, that the respondent had abandoned his son.
Abandonment is a ground for termination of parental
rights set forth in § 17a-112 (j) (3) (A).9 Thus, this ruling
affects the respondent’s parenting rights and may have
a significant impact on subsequent related proceedings.
See In re Shamika F., 256 Conn. 383, 403, 773 A.2d 347(2001); Madigan v. Madigan, supra, 224 Conn. 756–57.
Thus, under the second Curcio prong, the court’s ruling
constitutes an appealable final judgment. See Hartford
Accident & Indemnity Co. v. Ace American Reinsur-
ance Co., 279 Conn. 220, 226–27, 901 A.2d 1164 (2006);
Rostad v. Hirsch, 128 Conn. App. 119, 122–23, 15 A.3d
1176 (2011).
II
The respondent’s sole claim on appeal is that the
court’s finding of abandonment was clearly erroneous.
His principal contention is that the period of 142 days
he was away from his son is an insufficient time period
to support a finding of abandonment. The petitioner
counters that the relevant statutory scheme does not
contain a minimum time period for abandonment and
that the court’s findings were not clearly erroneous.
We agree with the petitioner.
We begin by setting forth the relevant legal principles
and our standard of review. ‘‘A parent abandons a child
if the parent has failed to maintain a reasonable degree
of interest, concern or responsibility as to the welfare
of the child . . . . General Statutes § 17a-112 (j) (3)
(A). Abandonment focuses on the parent’s conduct.
. . . Abandonment occurs where a parent fails to visit
a child, does not display love or affection for the child,
does not personally interact with the child, and demon-
strates no concern for the child’s welfare. . . . Section
17a-112 [(j) (3) (A)] does not contemplate a sporadic
showing of the indicia of interest, concern or responsi-
bility for the welfare of a child. A parent must maintain
a reasonable degree of interest in the welfare of his or
her child. Maintain implies a continuing, reasonable
degree of concern.’’ (Internal quotation marks omitted.)
In re Ilyssa G., 105 Conn. App. 41, 46–47, 936 A.2d 674(2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008).
We also have explained that ‘‘[t]he commonly under-
stood general obligations of parenthood entail these
minimum attributes: (1) express love and affection for
the child; (2) express personal concern over the health,
education and general well-being of the child; (3) the
duty to supply the necessary food, clothing, and medical
care; (4) the duty to provide an adequate domicile; and
(5) the duty to furnish social and religious guidance.
. . . It is not lack of interest alone which is the criterion
in determining abandonment. Abandonment . . .
requires failure to maintain interest, concern or respon-
sibility as to the welfare of the child. Attempts to achieve
contact with a child, telephone calls, the sending of
cards and gifts, and financial support are indicia of
interest, concern or responsibility for the welfare of a
child.’’ (Internal quotation marks omitted.) In re Drew
R., 47 Conn. App. 124, 129, 702 A.2d 647 (1997); see
also In re Juvenile Appeal (Docket No. 9489), 183 Conn.
11, 14, 438 A.2d 801 (1981); In re Migdalia M., 6 Conn.
App. 194, 208–209, 504 A.2d 533 (1986).
The issue of parental abandonment presents a ques-
tion of fact. See In re Shane P., 58 Conn. App. 244, 250,
754 A.2d 169 (2000); see also In re Drew R., supra, 47
Conn. App. 128; In re Rayna M., 13 Conn. App. 23, 36,
534 A.2d 897 (1987). ‘‘A finding is clearly erroneous
when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. In applying the clearly erroneous standard
to the findings of the trial court, we keep constantly in
mind that our function is not to decide factual issues
de novo. Our authority when reviewing the findings of
a judge, is circumscribed by the deference we must
give to decisions of the trier of fact, who is usually in
a superior position to appraise and weigh the evidence.
. . . The question for this court . . . is not whether it
would have made the findings the trial court did, but
whether in view of the evidence and pleadings in the
whole record it is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) In re Christopher B., 117 Conn.
App. 773, 780–81, 980 A.2d 961 (2009); see also In re
S.D., 115 Conn. App. 111, 116–17, 972 A.2d 258 (2009).
The trial court appropriately focused on the period
of time between early January, 2013, and late May, 2013,
when the respondent absconded from Connecticut to
avoid arrest for violating his probation. The court found
that the respondent did not inform his friend with whom
he left the child where he was or how to reach him.
Thus, there was no way for this friend to communicate
with the respondent, who was the child’s sole legal
guardian, to let him know of the child’s needs or to
obtain authorization to act on the child’s behalf. The
court further found that the respondent displayed only
sporadic indicia of interest in the child and his needs
that did not rise to the level of an appropriate degree
of interest to avoid a finding of abandonment. Addition-
ally, the court noted that the respondent never
attempted to send a letter to the child to let him know
that the respondent was ‘‘ok’’ and that he would contact
the child when possible. We conclude these factors
support the finding of abandonment.
We also reject the respondent’s argument that the
time period of 142 days that he had fled the jurisdiction
is insufficient to find abandonment. As correctly noted
by the petitioner, § 17a-111b (b) does not contain a
minimum time frame pursuant to which abandonment
occurs as a matter of law. The respondent has not
provided this court with any statute or case setting
forth a temporal requirement that must be met before
a finding of abandonment can be made. Finally, as noted
previously in this opinion, the court’s finding of aban-
donment was in accord with our precedent and not
clearly erroneous. The respondent’s time period argu-
ment, therefore, must fail.
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.
** February 26, 2014, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 17a-111b (b) provides in relevant part that ‘‘[t]he court
shall hold an evidentiary hearing on the motion [to cease reunification
efforts] not later than thirty days after the filing of the motion . . . .’’
2
Belin testified that she had observed the respondent with the child on
numerous occasions and noticed that the respondent displayed a lot of
frustration with parenting and that it was difficult for him to interact with
the child. She also observed the child ‘‘wince’’ or ‘‘flinch’’ when the respon-
dent would raise his voice.
3
Belin testified that she was given access to the respondent’s home after
he had fled and found numerous cell phones that had not been approved
by the Office of Probation.
4
‘‘The Silver Alert system does for missing persons with dementia and
other cognitive impairments what the Amber Alert system does for missing
children—it helps speed up the process of finding them. Specifically, the
Silver Alert system applies to any missing person age 18 years or older who
has a mental impairment or is 65 years of age or older. Both Amber Alert
and Silver Alert systems create an emergency notification system for law
enforcement agencies to broadcast local, regional, or statewide public alerts
via radio, television and electronic highway signs. The Silver Alert system
mandates that law enforcement immediately begin searching for missing
individuals who are ages 65 or older, or ages 18 and over if mentally impaired.
Once the police receive a missing person’s report and a description of
the missing person, the information is broadcast via radio, television, and
electronic highway signs through the Emergency Alert System (EAS). The
plan alerts the public as quickly as possible to the disappearance so everyone
may assist in the search for the safe return of the individual.’’ State of
Connecticut, State Department on Aging, ‘‘Connecticut Silver Alert System—
An Elderly And Or Mental Impairment Locator System,’’ (last modified on
December 5, 2011), available at http://www.ct.gov/agingservices/cwp/vie-
w.asp?Q=442724&A=2513 (last visited February 26, 2014) (copy contained
in the file of this case in the Appellate Court clerks’ office). The respondent
had a history of mental illness.
5
This court was not provided with a signed transcript of the court’s
decision as required by Practice Book § 64-1. On January 2, 2014, we issued
the following order: ‘‘As the record does not reflect that the trial court had
the opportunity to review the prepared transcript of its oral ruling in this
case, the trial court . . . is sua sponte ordered to review and sign the June
24, 2013 transcript containing its decision in this case in accordance with
[Practice Book] § 64-1.’’ The court signed the transcript on January 3, 2014.
6
In accordance with Practice Book § 67-13, the attorney for the minor
child filed a statement with the court and adopted the brief of the petitioner.
7
We note that even if the parties had agreed on the existence of a final
judgment, such an agreement would not confer jurisdiction on this court.
‘‘The appellate courts have a duty to dismiss, even on [their] own initiative,
any appeal that [they lack] jurisdiction to hear. . . . Neither the parties nor
the trial court, however, can confer jurisdiction upon [an appellate] court.
. . . The right of appeal is accorded only if the conditions fixed by statute
and the rules of court for taking and prosecuting the appeal are met.’’
(Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal,
288 Conn. 646, 654, 954 A.2d 816 (2008).
8
General Statutes § 17a-111b (a) provides: ‘‘The Commissioner of Children
and Families shall make reasonable efforts to reunify a parent with a child
unless the court (1) determines that such efforts are not required pursuant
to subsection (b) of this section or subsection (j) of section 17a-112, or
(2) has approved a permanency plan other than reunification pursuant to
subsection (k) of section 46b-129.’’
9
Proof of only one of the several grounds set forth in § 17a-112 (j) (3) is
required for termination of parental rights. In re Elvin G., 310 Conn. 485,
500, 78 A.3d 797 (2013).