In re Zen T. , 165 Conn. App. 245 ( 2016 )

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IN RE ZEN T.*
(AC 38305)
Gruendel, Prescott and Schaller, Js.**
Argued February 11—officially released April 19, 2016***
(Appeal from Superior Court, judicial district of
Middlesex, Child Protection Session, Gleeson, J.
[judgment]; Abery-Wetstone, J. [adoption decree];
Frazzini, J. [motion to open, set aside adoption decree].)
Heather S., self-represented, the appellant (respon-
dent mother).
Michael Besso, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, Gregory T. D’Auria, solicitor general, and Benja-
min Zivyon, assistant attorney general, for the
appellee (petitioner).
Opinion
SCHALLER, J. The respondent, Heather S., whose
parental rights had been terminated in a prior proceed-
ing, appeals from the judgment of the trial court dismiss-
ing, on the basis of lack of subject matter jurisdiction,
her motion to open and set aside the adoption of her
minor child, Zen T. We affirm the judgment of the
trial court.
This court affirmed the judgment of the trial court
terminating the respondent’s parental rights in In re
Zen T., 149 Conn. App. 376, 88 A.3d 1286, cert. denied,
312 Conn. 911, 93 A.3d 593 (2014). In that opinion, we
set forth the following facts and procedural history:
‘‘The petitioner, the Commissioner of Children and
Families . . . filed a petition with the court, requesting
that the parental rights of the [respondent] be termi-
nated. The statutory ground alleged in the petition
against the [respondent was] that the child [had] been
denied, by reason of an act or acts of parental commis-
sion or omission, including, but not limited to, sexual
molestation or exploitation, severe physical abuse or a
pattern of abuse, the care, guidance, or control neces-
sary for the child’s physical, educational, moral, or emo-
tional well-being, [pursuant to] General Statutes § 17a-
112 (j) (3) (C). The matter was tried to the court . . . .
The [respondent] was present and was represented at
trial by counsel. . . . The petitioner called nine wit-
nesses and introduced twenty exhibits. [The respon-
dent] called nine witnesses, testified in her own behalf
and introduced twenty-one exhibits.
‘‘After the trial concluded, the court held that the
petitioner proved, by clear and convincing evidence,
that: (1) the Department of Children and Families
(department) made reasonable efforts to reunify the
family, as required by § 17a-112 (j) (1); (2) termination
was in the best interest of the child, pursuant to § 17a-
112 (j) (2); and (3) with respect to § 17a-112 (j) (3)
(C), the child’s various fractures and hematomas were
serious physical injuries that were nonaccidental or
were otherwise inadequately explained. The court fur-
ther found that all seven grounds for termination deline-
ated in § 17a-112 (k) existed. It then ordered the
termination of the [respondent’s] parental rights.’’
(Footnote omitted; internal quotation marks omitted.)
Id., 378–79.
In her appeal from the termination judgment, the
respondent claimed that she was denied effective assis-
tance of counsel. Id., 379. This court determined that
the respondent ‘‘did not meet her burden of demonstra-
ting that any alleged inadequacy of counsel prejudiced
her in a way that affected the outcome of the termina-
tion proceeding.’’ Id., 384. We therefore affirmed the
judgment of the trial court. Id.
This court set out the subsequent procedural history
of the termination of parental rights case in In re Zen
T., 151 Conn. App. 724, 95 A.3d 1258, cert. denied, 314
Conn. 911, 100 A.3d 403 (2014), cert. denied sub nom.
Heather S. v. Commissioner of Children & Families,
U.S. , 135 S. Ct. 2326, 191 L. Ed. 2d 991 (2015):
‘‘After she had filed her first appeal, the [respondent]
filed a motion in the trial court to open or set aside the
judgment on December 30, 2013, approximately four
months after that court’s judgment. She alleged ineffec-
tive assistance of counsel, unethical practices by the
department, insufficient evidence, the unconstitutional-
ity of § 17a-112, and a violation of her right to be heard
as the bases for her motion.
‘‘The court held a hearing on January 16, 2014, at
which time the [respondent] filed an amended motion
to open and set aside the judgment. The court issued an
oral ruling denying the [respondent’s] amended motion
because she failed to allege or establish that granting
the motion was in the best interest of Zen T. as required
by General Statutes § 45a-719.’’ (Footnotes omitted.)
Id., 727–28. This court then affirmed the judgment of
the trial court. Id., 732.
On October 17, 2014, the Superior Court, Abery-Wet-
stone, J., approved the adoption of Zen T.1 On February
17, 2015, the respondent filed the motion to open that
forms the basis of the present appeal. Therein, she
claimed that the petitioner, the Commissioner of Chil-
dren and Families, had failed to provide an accurate
declaration that there were no proceedings pending or
contemplated2 affecting the custody of the child to be
adopted, as required by General Statutes § 45a-727 (a)
(2).3 The petitioner objected on the ground that the
respondent lacked standing to move to open the adop-
tion. The trial court, Frazzini, J., heard argument on
the respondent’s motion and permitted the respondent
to file a posthearing brief on the issue of standing. The
court subsequently raised the issue of mootness and
ordered both parties to provide supplemental briefing
on it. It then determined that it lacked subject matter
jurisdiction due to mootness, finding that because the
proceedings the respondent claimed were pending at
the time of the adoption had subsequently been decided
adversely to her, her claim was moot.4 This appeal
followed.
The respondent claims on appeal that she has stand-
ing because the adoption has the effect, pursuant to
General Statutes § 45a-719, of preventing her from filing
any further motions to open the termination of parental
rights, and that her motion to open is not moot because
the court could open the adoption and stay its enforce-
ment pending resolution of her challenges to the termi-
nation of parental rights, or in the alternative that an
exception to the mootness doctrine applies. The peti-
tioner claims that the respondent lacks standing, and,
therefore, the dismissal was proper. We conclude that
the court properly determined that it lacked subject
matter jurisdiction, but we do so on standing, rather
than mootness, grounds.5
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . Where a
party is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause. . . . Our review of this question of law is ple-
nary.’’ (Citations omitted; internal quotation marks
omitted.) J.E. Robert Co. v. Signature Properties, LLC,
309 Conn. 307, 318, 71 A.3d 492 (2013). Standing ‘‘is a
practical concept designed to ensure that courts and
parties are not vexed by suits brought to vindicate non-
justiciable interests . . . .’’ (Internal quotation marks
omitted.) Harris v. Zoning Commission, 259 Conn.
402, 409–10, 788 A.2d 1239 (2002).
General Statutes § 45a-707 (8) defines ‘‘Termination
of Parental Rights’’ in relevant part as ‘‘the complete
severance by court order of the legal relationship, with
all its rights and responsibilities, between the child and
the child’s parent or parents so that the child is free
for adoption . . . .’’ (Emphasis added.) ‘‘[T]he state has
a vital interest in expediting the termination proceed-
ings . . . .’’ (Internal quotation marks omitted.) In re
Jonathan M., 255 Conn. 208, 233, 764 A.2d 739 (2001).
Despite this interest in expedited proceedings, in order
to protect the rights of the biological parent, General
Statutes § 46b-129b (a) provides in relevant part that
the commissioner may file a petition for adoption only
‘‘after the expiration of any appeal or appeal period’’6
following the termination of parental rights, and Gen-
eral Statutes § 45a-719 provides in relevant part that
‘‘[t]he court may grant a motion to open or set aside a
judgment terminating parental rights . . . provided the
court shall consider the best interest of the child, except
that no such motion or petition may be granted if a
final decree of adoption has been issued prior to the
filing of any such motion or petition. . . .’’7 The respon-
dent has taken advantage of both of these avenues
for protecting her rights, by appealing the judgment
terminating her parental rights, moving to open that
judgment and appealing from the judgment denying her
motion to open. See Meinket v. Levinson, 193 Conn. 110,
113, 474 A.2d 454 (1984) (‘‘[w]e have strongly disfavored
collateral attacks upon judgments because such belated
litigation undermines the important principle of
finality’’).
Now that her parental rights have been terminated,
the respondent has no more right to challenge the adop-
tion than any member of the public. The definition of
termination of parental rights itself states that its pur-
pose is to cut off the legal rights of a parent so that an
adoption can occur. It would be antithetical to this
purpose if the adoption statutes or the statute that gov-
erns a motion to open a termination of parental rights
gave the respondent rights that the termination of
parental rights statute is intended to terminate.
The respondent claims that she still has an interest
in the adoption due to the potential that her motion to
open the termination of parental rights could eventually
be granted. The respondent’s various attempts to open
the termination of parental rights judgment do not make
the judgment any less final. Our Supreme Court and
this court have previously noted this in other contexts.
‘‘[T]he fact that the trial court has the power to open
a judgment . . . does not mean that the judgment is
not final for purposes of appeal . . . .’’ (Internal quota-
tion marks omitted.) RAL Management, Inc. v. Valley
View Associates, 278 Conn. 672, 687, 899 A.2d 586
(2006), quoting Governors Grove Condominium Assn.,
Inc. v. Hill Development Corp., 187 Conn. 509, 510 n.2,
446 A.2d 1082 (1982), overruled on other grounds by
Morelli v. Manpower, Inc., 226 Conn. 831, 834, 628 A.2d
1311 (1993). Likewise, discovery is not available to a
party who has moved to open a judgment because
‘‘[u]ntil a motion to open has been granted, the earlier
judgment is unaffected, which means that there is no
active civil matter.’’ Bruno v. Bruno, 146 Conn. App.
214, 230, 76 A.3d 725 (2013). These same principles
apply here; as long as the motion to open the termina-
tion of parental rights has not been granted, the parental
relationship between the child and the respondent, with
all its rights and responsibilities, has been severed, and
the child is free for adoption. See General Statutes § 45a-
707 (8). Therefore, we conclude that, under the circum-
stances of this case,8 the respondent lacked standing
to move to open the approval of the adoption.
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.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
*** April 19, 2016, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
As noted by the trial court, the child’s name was changed following the
termination of parental rights; like the trial court, we will refer to the child
by his former name for consistency.
2
The respondent’s motion for reconsideration of the Supreme Court’s
denial of her petition for certification to appeal from this court’s affirmance
of the trial court’s denial of her first motion to open, was pending at the
time the adoption was approved. The motion was filed on October 6, 2014,
and denied by the Supreme Court on October 22, 2014, five days after the
adoption decree. She had also filed a motion for reconsideration of her
motion to stay adoption proceedings pending her anticipated appeal to the
United States Supreme Court with this court on October 9, 2014, but this
motion was denied on October 14, 2014, three days before the adoption
decree. The respondent filed a petition for a writ of certiorari to the United
States Supreme Court on March 23, 2015. It was denied on May 18, 2015.
She petitioned for rehearing on June 12, 2015, and her petition for rehearing
was denied on July 20, 2015. She again moved to open the termination of
parental rights on October 24, 2014, and petitioned for a new termination
trial on November 21, 2014. The trial court denied the motion to open on
November 24, 2014, and the petition for a new trial on November 21, 2014.
The respondent concedes that her pending motions have been decided
adversely to her, but maintains that these denials were due to the adoption;
the judges who denied her motions did not state their reasons.
3
General Statutes § 45a-727 (a) (2) provides: ‘‘The application shall incor-
porate a declaration that to the best of the knowledge and belief of the
declarant there is no other proceeding pending or contemplated in any other
court affecting the custody of the child to be adopted, or if there is such a
proceeding, a statement in detail of the nature of the proceeding and
affirming that the proposed adoption would not conflict with or interfere
with the other proceeding. The court shall not proceed on any application
which does not contain such a declaration. For the purposes of this declara-
tion, visitation rights granted by any court shall not be considered as affecting
the custody of the child.’’
4
The respondent moved to reargue her motion to open on August 25,
2015, moved for an articulation of the trial court’s decision on September
30, 2015, and moved for this court to review the trial court’s denial of her
motion for articulation on October 13, 2015. Each motion was denied, on
September 1, 2015, October 1, 2015, and October 15, 2015, respectively.
5
Because we have determined that the respondent lacks standing, we
make no determination regarding the court’s mootness analysis or the
respondent’s additional arguments regarding the constitutionality of
§ 45a-719.
6
General Statutes § 46b-129b (a) provides: ‘‘If the Superior Court grants
a petition to terminate parental rights and appoints the Commissioner of
Children and Families as statutory parent, the commissioner may, after the
expiration of any appeal or appeal period, file a petition for adoption,
together with a written agreement of adoption, in the Superior Court that
granted the termination of parental rights.’’
7
General Statutes § 45a-719 provides: ‘‘The court may grant a motion to
open or set aside a judgment terminating parental rights pursuant to section
52-212 or 52-212a or pursuant to common law or may grant a petition for
a new trial on the issue of the termination of parental rights, provided the
court shall consider the best interest of the child, except that no such motion
or petition may be granted if a final decree of adoption has been issued
prior to the filing of any such motion or petition. Any person who has legal
custody of the child or who has physical custody of the child pursuant to
an agreement, including an agreement with the Department of Children and
Families or a licensed child-placing agency, may provide evidence to the
court concerning the best interest of the child at any hearing held on the
motion to reopen or set aside a judgment terminating parental rights. For
the purpose of this section, ‘best interest of the child’ shall include, but not
be limited to, a consideration of the age of the child, the nature of the
relationship of the child with the caretaker of the child, the length of time
the child has been in the custody of the caretaker, the nature of the relation-
ship of the child with the birth parent, the length of time the child has been
in the custody of the birth parent, any relationship that may exist between
the child and siblings or other children in the caretaker’s household, and
the psychological and medical needs of the child. The determination of the
best interest of the child shall not be based on a consideration of the socio-
economic status of the birth parent or the caretaker.’’
8
Although there may be circumstances in which a biological parent, who
has had his or her parental rights terminated, may have standing to challenge
the decree of adoption, such circumstances are not presented here.