State v. Felimon C. ( 2021 )

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STATE OF CONNECTICUT v. FELIMON C.*
(AC 43686)
Elgo, Cradle and Harper, Js.
Syllabus
Convicted, following a plea of guilty, of the crimes of sexual assault in the
second degree and risk of injury to a child, the defendant appealed to
this court from the judgment of the trial court denying his motion to
correct an illegal sentence. The fourteen year old victim of the sexual
assault indicated in a forensic interview that she and the defendant
had engaged in two sexual encounters and, subsequently, she became
pregnant. The victim delivered the child and arrangements were made for
her sister to adopt the child. Under the plea agreement, the defendant’s
sentence included a condition of probation that he would not contest
or interfere with the adoption of the child conceived by the sexual
assault. The defendant claimed that the condition of probation at issue
violated his constitutional rights and that the condition exceeded the
court’s authority. The court denied the defendant’s motion, finding that
the provisions of the applicable statute (§ 53a-30) were not exhaustive
and that, given the severity of the offense, the condition was bargained
for and was reasonable. Following oral argument before this court, this
court ordered the trial court to resolve certain factual issues that were
not clear from the record, and, after a hearing, the trial court found
that the defendant’s parental rights had been terminated by the Probate
Court, the defendant’s appeal of that decision had been dismissed, and
the child had been adopted by order of the Probate Court. Held that
because the defendant’s parental rights had been terminated and the
child had been adopted, the appeal was moot: the provisions of the
applicable statute (§ 45a-719) concerning a motion to open or set aside
a judgment terminating parental rights make clear that the court may
not grant such a motion, if, prior to the filing of such a motion, a final
decree of adoption has been issued; moreover, with respect to the
adoption of the child, even if an avenue to challenge the adoption existed,
the defendant would lack standing to pursue it, and, accordingly, this
court could not grant the defendant any practical relief.
Argued April 12—officially released August 17, 2021
Procedural History
Information charging the defendant with the crimes
of sexual assault in the second degree and risk of injury
to a child, brought to the Superior Court in the judicial
district of Danbury, where the defendant was presented
to the court, Krumeich, J., on a plea of guilty; judgment
of guilty in accordance with the plea; thereafter, the
court, D’Andrea, J., denied the defendant’s motion to
correct an illegal sentence, and the defendant appealed
to this court. Appeal dismissed.
Judie Marshall, for the appellant (defendant).
Christopher A. Alexy, senior assistant state’s attor-
ney, with whom were Melissa L. Streeto, senior assis-
tant state’s attorney, and, on the brief, Stephen J. Seden-
sky III, state’s attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Felimon C., appeals from
the judgment of the trial court denying his motion to
correct an illegal sentence. Specifically, he claims that
(1) the sentencing court lacked statutory authority to
impose a condition of probation prohibiting him from
contesting the adoption of the minor child conceived
as a result of his sexual assault (condition), (2) the
condition was illegal because it violated his constitu-
tionally protected right to familial association, (3) he
did not waive his right to challenge the condition by
voluntarily entering into a plea agreement, and (4) the
appropriate remedy is to retain ‘‘the original sentence
while striking the unlawful condition of probation.’’
Because the defendant’s parental rights have been ter-
minated and the minor child has been adopted, we
conclude that the appeal is moot.
The following facts and procedural history are rele-
vant to our disposition of this appeal. On February 29,
2016, detectives with the Danbury Police Department
were dispatched to Danbury Hospital following a
reported sexual assault. Upon their arrival, they learned
that the victim, who was fourteen years old, was three
months pregnant. The detectives conducted a forensic
interview, during which the victim indicated that she
and the thirty-one year old defendant had begun
exchanging text messages after he had delivered pizza
to her home, and, following two sexual encounters, she
became pregnant. The victim ultimately delivered the
child, and arrangements were made for her sister to
adopt the child.
On September 7, 2017, the defendant entered a guilty
plea before the court, Krumeich, J., to sexual assault
in the second degree and risk of injury to a child. The
agreed on disposition was a term of ‘‘fifteen years [of
incarceration], execution suspended after . . . one
[year], followed by twenty years [of] probation.’’ Addi-
tionally, under the plea agreement the sentence
included the condition that the defendant would not
contest or interfere with the adoption of the minor child
conceived by the sexual assault. On October 19, 2017,
the court, Welch, J., sentenced the defendant in accor-
dance with the plea agreement. The court also entered
a no contact standing criminal protective order in favor
of the victim and specified that ‘‘this order also protects
the [victim’s] minor children. This order shall remain
in full force and effect until October 19, 2032.’’
On February 20, 2019, the defendant filed a motion to
correct an illegal sentence, asserting that the condition
violated his ‘‘constitutional rights under the first amend-
ment and the due process clauses of the fifth and four-
teenth amendments to the United States constitution
and article first, §§ 8, 9, and 14, of the Connecticut
constitution,’’ and that the condition exceeded the
court’s authority ‘‘pursuant to General Statutes § 53a-
30.’’ He argued that he has a constitutional right to
familial association and that, ‘‘[b]y requiring the defen-
dant . . . to refrain from contesting [the] termination
of his parental rights, the court’s order require[d] the
defendant to choose between exercising his right to
contest the termination of his [parental] rights or risk
violating his probation.’’ With respect to § 53a-30, the
defendant argued that the court lacked statutory author-
ity to impose the condition because it was ‘‘not [one
of the] specifically enumerated condition[s]’’ set forth
in the statute. The defendant alleged that the proper
remedy was to resentence him in accordance with the
plea agreement and omit the condition concerning the
adoption.
The trial court, D’Andrea, J., heard argument on the
defendant’s motion to correct an illegal sentence on
June 4, 2019. On October 1, 2019, the court issued a
memorandum of decision denying the motion. The
court found that the provisions of § 53a-30 (a) are not
exhaustive, and that, given the severity of the offense
against the victim, ‘‘the condition of not contesting the
adoption was one not only bargained for, but reasonable
under all of the circumstances, and provided for the
protection of the victim and the victim’s child.’’
This appeal followed. On appeal, the parties disagree
with respect to whether the defendant’s parental rights
had been terminated and whether the adoption had
been completed prior to the hearing on the defendant’s
motion to correct an illegal sentence. The state argues
that ‘‘[t]he record reveals that, on an unspecified date
prior to the hearing on the defendant’s motion, the
defendant’s parental rights had been terminated and the
adoption had been completed in the Hartford [Regional
Children’s] Probate Court.’’ The defendant counters
that ‘‘the record does not reflect the child had been
adopted’’ and that, ‘‘[c]ontrary to the state’s assertion,
there is nothing in the record indicating that the adop-
tion had been finalized at the time of the hearing. The
portion of the transcript referenced by the state [in
support of its claim that the] adoption had been final-
ized, instead, addressed parental rights, which counsel
for the defendant represented had been terminated.’’
Oral argument was held before this court on April
12, 2021. On May 25, 2021, we ordered the trial court,
sua sponte, to resolve the following factual issues that
were not clear from the record: ‘‘(1) Were the defen-
dant’s parental rights terminated, and, if so, when? (2)
Was there an appeal of the decision terminating the
defendant’s parental rights and, if so, what is the out-
come of that appeal? (3) Are adoption proceedings
pending, or has the minor child been adopted and, if
so, when did that order enter?’’ After a hearing, the trial
court issued the following factual findings on June 24,
2021: ‘‘[T]he court finds (1) that the [defendant’s] paren-
tal rights were terminated by the Hartford Regional
[Children’s] Probate Court on December 17, 2018 . . .
(2) that there was an appeal of the Hartford Regional
[Children’s] Probate [Court’s decision] filed by the
defendant . . . on January 16, 2019, in the Superior
Court [in the judicial district of Fairfield] . . . Juvenile
Matters at Bridgeport, which appeal was dismissed by
the court for failure to appear and prosecute on July
31, 2019, and no further proceedings have occurred in
the matter . . . [and] (3) that the minor child has been
adopted by order of the Farmington Regional Probate
Court on December 23, 2020.’’
Thereafter, we issued the following order on June
29, 2021: ‘‘The court having received the trial court’s
findings and having taken judicial notice of the attached
documents hereby sua sponte orders the parties to file
supplemental briefs, of no more than [ten] pages [within
fourteen days] giving reasons, if any, why this appeal
should not be dismissed as moot.’’
‘‘Mootness is a threshold issue that implicates subject
matter jurisdiction, which imposes a duty on the court
to dismiss a case if the court can no longer grant practi-
cal relief to the parties. . . . Mootness presents a cir-
cumstance wherein the issue before the court has been
resolved or had lost its significance because of a change
in the condition of affairs between the parties. . . .
[T]he existence of an actual controversy is an essential
requisite to appellate jurisdiction; it is not the province
of appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.’’
(Internal quotation marks omitted.) Wilcox v. Ferraina,
100 Conn. App. 541, 547–48, 920 A.2d 316 (2007). ‘‘In
determining mootness, the dispositive question is
whether a successful appeal would benefit the plaintiff
or defendant in any way.’’ Hechtman v. Savitsky, 62
Conn. App. 654, 659, 772 A.2d 673 (2001).
On the basis of the trial court’s findings of fact and
the parties’ supplemental briefs, we conclude that this
appeal is moot. With respect to the termination of paren-
tal rights, the state argues that, because the adoption
has been finalized, no court has the authority to open,
set aside, or modify the termination of the defendant’s
parental rights. The defendant contends that the termi-
nation and adoption may be opened. The provisions of
General Statutes § 45a-719, however, make clear that
‘‘[t]he court may grant a motion to open or set aside a
judgment terminating parental rights . . . 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.’’ (Emphasis added).
Moreover, with respect to the adoption, we agree with
the state that, even if an avenue to challenge the adop-
tion existed, the defendant would lack standing to pur-
sue it. See General Statutes § 45a-731 (‘‘[a] final decree
of adoption . . . shall have the following effect in this
state . . . (5) . . . the legal relationship between the
adopted person and the adopted person’s biological
parent or parents . . . is terminated for all purposes’’).
In his supplemental brief, the defendant requests, as
relief, that we ‘‘reverse the decision of the trial court,
remand, and order the trial court to correct the defen-
dant’s sentence by striking the condition of probation
prohibiting him from contesting the termination of his
parental rights and the adoption of his minor child.’’
The minor child, however, has been adopted, the defen-
dant’s parental rights have been terminated, and the
defendant’s appeal of the termination of his parental
rights was dismissed. Accordingly, we can no longer
grant the defendant practical relief, and this appeal
is moot.
The appeal is dismissed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018); we decline to identify any party protected or sought to be protected
under a protective order or a restraining order that was issued or applied
for, or others through whom that party’s identity may be ascertained.