In re Aisjaha N. ( 2020 )

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IN RE AISJAHA N.*
(AC 43680)
DiPentima, C. J., and Moll and Harper, Js.**
Syllabus
The respondent mother appealed to this court from the judgment of the
trial court adjudicating her minor child, A, neglected. On appeal, the
mother claimed that the trial court violated her due process rights when
it denied her counsel’s oral motion for a continuance of the neglect
trial because the mother was allegedly hospitalized. The mother had
previously been found to be incompetent and was appointed a guardian
ad litem. On the day of trial, the mother failed to appear. Counsel for
the mother moved for a continuance, indicating to the court that she
had been informed by the mother’s social worker that she could not
attend because she had been hospitalized and asked that the trial not
proceed without her. The mother’s guardian ad litem also objected to
proceeding without her. Counsel for A objected to the continuance and
contended that further delay would not be in the best interest of A. The
court denied the motion and the trial proceeded without the mother. A
was adjudicated neglected and committed to the custody of the peti-
tioner, the Commissioner of Children and Families. Held that the respon-
dent mother’s due process rights were not violated by the trial court’s
denial of her motion for a continuance of the neglect trial; this court,
considering the three-pronged test set forth in Mathews v. Eldridge (424
U.S. 319), determined that the mother failed to present any authority
for her proposition that a neglect proceeding necessarily implicates
the fundamental right to parent one’s child, and her reliance on cases
involving the termination of parental rights was misplaced because ter-
mination proceedings differ vastly from neglect proceedings, as a peti-
tion for neglect does not seek the permanent and irrevocable ending of
parental rights, the mother had both an attorney and a guardian ad litem
present to advocate on her behalf and, thus, the probable value of a
continuance was lessened, and the government’s interest in ensuring
the health and safety of A was significant, an interest that would have
been substantially impacted by further delaying the resolution of A’s
custodial placement, particularly in light of the fact that at the time of
the trial, A was been under a temporary order of custody for almost
one year.
Argued May 18—officially released August 3, 2020***
Procedural History
Petition by the Commissioner of Children and Fami-
lies to adjudicate the respondents’ minor child
neglected, brought to the Superior Court in the judicial
district of Waterbury, Juvenile Matters, and tried to the
court, Hon. John Turner, judge trial referee; judgment
adjudicating the minor child neglected and ordering
commitment to the custody of the Commissioner of
Children and Families, from which the respondent
mother appealed to this court. Affirmed.
Benjamin M. Wattenmaker, assigned counsel, for the
appellant (respondent mother).
Stephen G. Vitelli, assistant attorney general, with
whom were Benjamin Zivyon, assistant attorney gen-
eral, and, on the brief, William Tong, attorney general,
for the appellee (petitioner).
Opinion
DiPENTIMA, C. J. The sole issue in this appeal is
whether the court, Hon. John Turner, judge trial ref-
eree, erroneously denied the respondent mother’s
motion for a continuance during a trial in which her
daughter, Aisjaha N. (child), was adjudicated neglected.
The oral motion, made by counsel for the respondent
mother at the start of the hearing, was based on her
alleged emergency hospitalization at the time of the
hearing. The court denied the motion and the neglect
hearing proceeded without the respondent mother pres-
ent. The court found that the child was neglected and
committed her to the care of the petitioner, the Commis-
sioner of Children and Families. This appeal followed.
In her appeal, the respondent mother argues that the
trial court violated her due process rights under the
fifth amendment to the United States constitution by
denying her motion for a continuance of the petitioner’s
neglect petition. The petitioner argues that the court
properly denied her motion for a continuance and that
the respondent mother’s due process rights were not
implicated. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The petitioner filed a petition for
neglect on November 25, 2018, alleging that the child
had been abandoned, had been denied proper care and
attention and was living under conditions injurious to
her well-being. The respondent mother was served with
an order for temporary custody, petition, summons,
notice and an order to appear on December 7, 2018,
and January 9, 2019. She appeared on December 7, 2018,
and entered a plea of denial. The case was continued
until January 23, 2019, for a case status conference and
for the respondent mother to undergo a competency
examination. The respondent mother failed to attend
the hearing and the trial was continued to February
20, 2019, when the respondent mother again failed to
appear. On March 14, 2019, after a competency hearing,
the respondent mother was found to be incompetent
and proceedings were stayed for sixty days to allow
the respondent mother to be restored to competency.
On May 29, 2019, the court found that the respondent
mother had not been restored to competency and
appointed a guardian ad litem for her. The case then
was continued to July 16, 2019, for a case status confer-
ence at which a trial on the neglect petition was sched-
uled for October 28, 2019.
The respondent mother failed to appear for the Octo-
ber 28, 2019 trial. At trial, counsel for the respondent
mother reported that the respondent mother would not
be present because she was hospitalized. Counsel
stated: ‘‘I received word from [the social worker for
the respondent mother] last week that she—although
she had no verification because she didn’t have a release
that she was told by the maternal grandmother that my
client had been admitted to the hospital. This weekend
I actually did receive a voice mail from my client stating
that she was admitted to the hospital and would not
be at today’s court date. She was anticipating that she
would be released tomorrow, however, I’m not so sure
that that will actually happen. I do not have a release.
I just found out where she was and they’re not going
to talk to me at the hospital. We’re hoping that perhaps
the guardian ad litem will be able to . . . verify infor-
mation with— by presenting papers to them that she’s
been appointed as . . . the guardian ad litem.’’ Follow-
ing a discussion between the attorneys and the court
about the role of the guardian ad litem, the court asked
if the parties were ready to proceed. Counsel for the
respondent mother objected: ‘‘We are not [ready], Your
Honor . . . [b]ecause my client is not present. She’s
not competent. She can’t be defaulted and she’s admit-
ted to the hospital. . . . And she also left me a voice
mail requesting that because she can’t be present that
we not proceed without her and that we continue the
matter. So I cannot agree to proceed in her absence.’’
The court stated: ‘‘Your client is not being defaulted.
Your client is incompetent and because she is incompe-
tent a guardian ad litem was appointed because she
was unable to understand the nature of the proceedings
and to assist her counsel in her defense. That’s the
reason that we have [the] guardian ad litem.’’
The guardian ad litem for the respondent mother
also opposed proceeding: ‘‘I also object to the matter
proceeding because although she is not competent to
assist her counsel, that does not mean she is not compe-
tent to assist me as her guardian ad litem and, in fact,
I believe it is required of me as guardian ad litem to
first attempt to . . . explain proceedings in a manner
that she can understand. She has the right to be present
during her trial and it is also incumbent upon me as
her guardian ad litem to request such accommodations
as are necessary to best serve . . . my ward given her
limitations.’’ The attorney for the minor child stated
that further delaying the proceedings would not be in
the best interest of the child. After a brief recess, the
hearing began with counsel for the respondent mother
renewing her objection to the trial proceeding: ‘‘Your
Honor, at this time I . . . would like to renew my objec-
tion to proceeding in my client’s absence given that she
is incompetent. The guardian ad litem is supposed to
explain the process as it goes . . . along in a manner
she can understand. She can’t do that without her being
present and my client did leave me a voice mail saying
that she was involuntarily hospitalized and that she
wanted this matter continued.’’
The court then stated: ‘‘I’ll point out that mother
underwent a competency evaluation. It was determined
that she is incompetent and in need of a guardian ad
litem. She was determined to be incompetent because
she was unable to understand the nature of the proceed-
ings and to assist her lawyer with regard to her defense,
and that [the guardian ad litem] was appointed . . .
in May of 2019 and [the guardian ad litem] filed her
appearance as [guardian ad litem] for mother shortly
thereafter, and I understand it’s been orally represented
without any documentation or other corroboration that
mother is not present today because she is undergoing
treatment in a facility . . . .’’
During the trial, the child’s maternal grandmother
testified that her daughter, the respondent mother, was
hospitalized at the time of trial at Saint Raphael’s Hospi-
tal. She testified that she knew that because she went
to visit her there during the week before trial. The
child’s grandmother brought forms completed by the
respondent mother’s physician that the grandmother
planned to submit to the Probate Court in order to seek
conservatorship. These forms, admitted into evidence
during the hearing, however, did not indicate that the
respondent mother was hospitalized the morning of
trial.
In the court’s memorandum of decision finding the
petitioner had proved the allegations of neglect as to
the child, the court set forth the explanation for the
respondent mother’s failure to appear provided by her
counsel. ‘‘Counsel for [the respondent mother] reported
that she believed [respondent mother] was not present
because [she] was in a hospital. Reportedly, her client’s
mother (maternal grandmother) had been told a week
prior to the trial (by someone not identified) that
[respondent mother] had been admitted to the hospital.
Counsel’s representation that [respondent mother] had
been admitted to the hospital was based on a message
from a social worker stating she’d been told by the
maternal grandmother that her client had been admitted
to the hospital. The social worker further stated to . . .
counsel she’d been unable to verify the information.
Counsel’s representation that [her client] had been
admitted to the hospital and could not attend the trial
was further based on a voice mail message from an
unidentified person (whom counsel believed to be [her
client]), that she ‘was admitted to the hospital and
would not be at today’s court date.’ Counsel stated
because she had no release, no verification or other
corroboration to offer the court, she was unable to
confirm that [respondent mother] was in fact in the
hospital. Counsel was without knowledge or reliable
information regarding [her client’s] purported admis-
sion to a hospital or whether [she] had been discharged
from the hospital and was unable to come to court
following her discharge. Given the above, the court
ordered the parties to proceed with the trial.’’ The court
further noted that the ‘‘request for a continuance was
predicated upon counsel’s unsubstantiated and uncor-
roborated hearsay twice removed. If true, [the respon-
dent] mother had been hospitalized for about one week
thus, there had been adequate time to obtain some
written corroboration of [the respondent] mother’s hos-
pitalization and moreover, a written motion for a contin-
uance of the trial should have been filed. Neither
occurred. The court regarded counsel’s statement of
what was reported to her via a voice mail message
from an unidentified person, to be untrustworthy and
unreliable. The court declined to rely on it and attached
no weight or credibility to it. Counsel’s objection to
proceeding with the trial was overruled and her request
for a continuance was denied.’’ The court also noted
that, following the objection, the attorney for the minor
child ‘‘immediately requested the court to proceed with
the trial citing her client has been under an order of
temporary custody for a long time and averring that
further delay was not in the child’s best interest.’’ The
court found that the child was in a state of neglect. The
court determined that it was in the best interest of the
child that she be placed in the custody of the petitioner.
This appeal followed.
We first address the standard of review. The peti-
tioner and the respondent mother differ on the applica-
ble standard of review that should guide our review of
the respondent mother’s claim. The respondent mother
argues that our review is plenary because her due pro-
cess rights were implicated in the court’s denial of her
continuance. In support of her argument that plenary
review should apply, the respondent mother empha-
sizes that the right to parent a child is a fundamental
one and discusses the procedural protections that are
offered during a hearing on the termination of parental
rights. A motion for a continuance that is denied, if
it implicates a fundamental right, can prompt plenary
review to determine if it constituted a denial of proce-
dural due process. See In re Shaquanna M., 61 Conn.
App. 592, 602, 767 A.2d 155 (2001) (reviewing denial of
motion for continuance during petition for termination
of parental rights). Here, however, the motion for a
continuance was denied during a trial on a petition for
neglect, not a petition for the termination of parental
rights, as in In re Shaquanna M.
Conversely, the petitioner argues that, because the
respondent mother’s due process rights were not
affected, the applicable standard of review is abuse of
discretion. Further, the petitioner emphasizes that we
generally review a denial of a motion for a continuance
for an abuse of discretion. See State v. Beckenbach, 198
Conn. 43, 47, 501 A.2d 752 (1985).
To determine which standard of review is applicable,
we turn to In re Shaquanna M., supra, 61 Conn. App.
594. In that case, the respondent claimed that she was
denied her procedural due process rights when the trial
court denied her motion for a continuance during a
termination of parental rights trial. Id. This court framed
the issue as ‘‘whether a continuance was necessary to
ensure the respondent’s right to due process.’’ Id., 600.
In addressing the respondent’s claim, this court began
its analysis with the following: ‘‘Whether the denial of
a continuance has been shown by the respondent to
have interfered with her basic constitutional right to
raise her children, thereby depriving her of procedural
due process, is the issue of this case. Its resolution is
a question of law for which our review is plenary. . . .
The abuse of discretion standard does not apply to
constitutional . . . claims, which are reviewed de novo
by the courts.’’ (Internal quotation marks omitted.) Id.
Although, in the present case, the respondent’s
motion for a continuance was denied in a neglect pro-
ceeding, and not a termination of parental rights pro-
ceeding, the respondent’s claim and arguments in sup-
port thereof are similar to those presented in In re
Shaquanna M.—that the denial of the motion for a
continuance interfered with her fundamental right.
Therefore, in accordance with In re Shaquanna M., we
exercise plenary review and, accordingly, we conclude
that the trial court did not err in denying the respondent
mother’s motion for a continuance and proceeding to
trial on the neglect petition.1
A denial of procedural due process triggers analysis
under the three-pronged test developed in Mathews v.
Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976). This test balances three competing interests:
‘‘[f]irst, the private interest that will be affected by the
official action; second, the risk of an erroneous depriva-
tion of such interest through the procedures used, and
the probable value, if any, of additional or substitute
procedural safeguards; and finally, the [g]overnment’s
interest, including the function involved and the fiscal
and the administrative burdens that the additional or
substitute procedural requirements would entail.’’ Id.,
335.
As to the first prong, the respondent mother argues
that the interest involved here is her fundamental right
to parent her child. She contends that the petitioner’s
neglect petition, which sought to place her child in the
custody of the petitioner, infringed on that constitu-
tional right. In support of this position, the respondent
mother cites to cases involving the termination of paren-
tal rights. See In re Matthew P., 153 Conn. App. 667,
102 A.3d 1127, cert. denied, 315 Conn. 902, 104 A.3d
106 (2014); In re Shaquanna M., supra, 61 Conn. App.
592. At issue here, however, is a petition for neglect.
General Statutes § 46b-129 (b) provides in relevant part
that a child may be found neglected if ‘‘there is reason-
able cause to believe that (1) the child or youth is
suffering from serious physical illness or serious physi-
cal injury or is in immediate physical danger from the
child’s or youth’s surroundings, and (2) as a result of
said conditions, the child’s or youth’s safety is endan-
gered and immediate removal from such surroundings
is necessary to ensure the child’s or youth’s safety
. . . .’’ The court then either holds a hearing with the
parents or caretaker of the child to determine whether
the court should vest the child’s temporary care and
custody in another person or suitable agency, or issues
an ex parte order vesting the child’s temporary care in
another person or agency. See General Statutes § 46b-
129 (b). Following the hearing, the court shall issue
‘‘specific steps the commissioner and the parent or
guardian shall take for the parent or guardian to regain
or to retain custody of the child or youth . . . .’’ Gen-
eral Statutes § 46b-129 (c) (6).
The respondent mother argues that the neglect pro-
ceeding is an infringement on her fundamental right to
parent her child. She cites no authority for the proposi-
tion that a neglect proceeding necessarily implicates
that right. Moreover, the right to parent a child is not
limitless. See Roth v. Weston, 259 Conn. 202, 224, 789
A.2d 431 (2002). In fact, the state has the responsibility
to act in order to protect the health and safety of chil-
dren. Id. Indeed, ‘‘it is unquestionable that in the face of
allegations that parents are unfit, the state may intrude
upon a family’s integrity.§ Id.; see also General Statutes
§§ 17a-112 (j) and 45a-717.
The respondent mother’s argument also overlooks
the fact that a neglect petition initiates a proceeding
that has a distinctly different goal from that of a termina-
tion of parental rights proceeding. A petition for neglect
does not seek the permanent and irrevocable ending
of the parental rights that is central to the termination
proceeding. See, e.g., In re Jermaine S., 86 Conn. App.
819, 828 n.7, 863 A.2d 720, cert. denied, 273 Conn. 938,
875 A.2d 43 (2005). Indeed, one of the goals of a neglect
proceeding is the development of specific steps that
will allow the parent to regain custody of his or her
child. Accordingly, the respondent mother’s reliance on
termination of parental rights cases is misplaced.
The second prong of Mathews addresses the risk of
an erroneous deprivation and the probable value of
additional or substitute procedural safeguards. See
Mathews v. Eldridge, supra, 424 U.S. 335. The respon-
dent mother contends that granting her motion for a
continuance was an additional procedure that would
have substantial value. She argues further that the pres-
ence of the guardian ad litem and attorney were not
enough to protect the respondent mother from wrongful
deprivation. The petitioner maintains that granting the
continuance would not have added significant value
because the respondent mother’s interests were pro-
tected sufficiently by her attorney and the guardian ad
litem who was assigned to represent the respondent
mother’s interests.
It is well established that ‘‘each party to a litigation
has the undoubted right to be present at the trial.’’
Anderson v. Snyder, 91 Conn. 404, 408, 99 A. 1032
(1917). This right, however, is not absolute. If a litigant
does not appear or is voluntarily absent from court,
the court is not required to halt proceedings until that
person can attend. See Automotive Twins, Inc. v. Klein,
138 Conn. 28, 35, 82 A.2d 146 (1951).
The guardian ad litem supported the respondent
mother’s motion for continuance and told the court that,
‘‘although [the respondent mother] is not competent
to assist her counsel, that does not mean she is not
competent to assist me as her guardian ad litem and,
in fact, I believe it is required of me as guardian ad
litem to first attempt to . . .explain proceedings in a
matter that she can understand. She has the right to be
present during her trial and it is incumbent upon me
as her guardian ad litem to request such accommoda-
tions as are necessary to best serve . . . my ward given
her limitations.’’
The court denied the motion for a continuance and
stated: ‘‘Your client is not being defaulted. Your client
is incompetent and because she is incompetent a guard-
ian ad litem was appointed because she was unable to
understand the nature of the proceedings and to assist
her counsel in her defense.’’
The record reveals that the respondent mother’s
attorney and her guardian ad litem advocated zealously
on her behalf throughout the trial. Further, the court
did not default the respondent mother for not attending
the hearing. Although the guardian ad litem does not
replace the respondent mother at trial, the potential
value of a continuance was lessened by the presence
of the guardian ad litem and the previous finding that
the respondent mother was incompetent. Significantly,
in response to the request for the continuance, the attor-
ney for the minor child stated: ‘‘Your Honor, I ask that
the trial proceed. . . . [T]his child has been under an
order of temporary custody for quite a long time. Mother
is incompetent to participate in any proceedings at any
rate. I just think that further delay is not in the best
interest of the child.’’ In addition, as noted by the trial
court, if the respondent mother had been hospitalized
since the prior week, ‘‘there had been adequate time
to obtain some written corroboration of [her] hospital-
ization and moreover, a written motion for a continu-
ance of the trial should have been filed.’’
The final prong to be considered is the government’s
interest, including the financial and administrative bur-
dens of additional procedures. See Mathews v.
Eldridge, supra, 424 U.S. 335. The government’s interest
here, ensuring the health and safety of the child, is
significant. Granting the continuance likely would have
placed a substantial burden on this governmental inter-
est, particularly, as noted by the attorney for the minor
child, in light of the prior repeated delays in this case,
mostly as a result of the respondent mother’s failure
to appear. As discussed previously in this opinion, the
petitioner invoked a ninety-six hour hold on November
25, 2018, and then moved for an order of temporary
custody and a neglect petition on November 28, 2018.
The respondent mother appeared on the first court date
on December 7, 2018, but failed to appear on January
23 and February 20, 2019, for subsequent hearings. At
the time of the trial on October 28, 2019, the child had
been under an order of temporary custody for almost
one year. As discussed previously in this opinion, at
trial, the attorney for the minor child noted that the
child had been under the order of temporary custody
for a lengthy period of time and argued that further
delay was not in the best interest of the child.
Although the financial and administrative burdens of
continuing the hearing may not have been significant,
the delay in resolving the child’s custodial placement
would have substantially impacted the government’s
interest in resolving the child’s custodial determination
swiftly and ensuring the care and safety of the child.
We note the importance of individuals, especially par-
ents in child custody proceedings, being able to attend
hearings in which their fundamental rights are at issue.
This, however, is not such a case. Accordingly, our
consideration of the Mathews factors leads us to con-
clude that the respondent mother’s procedural due pro-
cess rights were not violated by the court’s denial of her
motion for a continuance of the neglect proceeding.2
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.
*** August 3, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
This claim was preserved, and thus we need not consider the Golding
factors as presented in the respondent mother’s brief. See 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).
2
We also note that the court did not default the respondent mother for
not attending the hearing and, therefore, the petitioner was put to her proof
on the allegations of the petition.