Garvey v. Valencis

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DENISE A. GARVEY v. STANLEY M. VALENCIS
(AC 38407)
Lavine, Sheldon and Pellegrino, Js.
Syllabus
The plaintiff mother appealed to this court from the judgment of the trial
court sustaining the emergency ex parte custody order denying the
plaintiff visitation with the parties’ minor child. The defendant father was
awarded, and has maintained, sole legal and primary physical custody
of the child since 2005. In May, 2015, a physical confrontation had
occurred between the child and the plaintiff during a regularly scheduled
visit at the plaintiff’s home. Shortly after that incident, the defendant
filed an emergency ex parte order of custody pursuant to the applicable
statute (§ 46b-56f), which the court granted, finding that an immediate
and present risk of physical or psychological harm to the child existed.
The court suspended the plaintiff’s visitation rights, denied her any
contact with the child and scheduled a hearing on the matter to be held
nine days later. The court subsequently conducted an evidentiary hearing
on the ex parte application on the scheduled day in May, 2015, and also
conducted two hearings in June, 2015, as well as a final hearing in
September, 2015. Thereafter, the court issued a memorandum of decision
on the ex parte order of custody, finding, by clear and convincing evi-
dence, that its May, 2015 orders were appropriately entered, and that
a current, immediate, and present risk of psychological harm to the
child existed. Held:
1. The plaintiff could not prevail on her claim that the court improperly
entered the emergency ex parte custody order in violation of § 46b-56f
(c), which requires an effort to hear from the other party, because she
was available, desired to participate, and was present in the courthouse
when the court entered the ex parte order: the text of § 46b-56f does
not require that the court provide a respondent with the opportunity to
be heard prior to ordering emergency ex parte relief, as § 46b-56f pro-
vides that the court may, prior to or after a hearing, issue an emergency
order for the protection of the child if it finds that an immediate and
present risk of physical danger or psychological harm to the child exists,
and that the applicant submit an affidavit detailing the conditions requir-
ing an emergency ex parte order, stating that the emergency ex parte
order is in the best interests of the child, and stating the actions taken
to notify the respondent, or if no actions were taken to inform the
respondent, explaining why the court should consider such an applica-
tion on an ex parte basis absent such notification efforts.
2. The plaintiff’s claim that § 46b-56f (c) mandates that a hearing be com-
pleted within fourteen days after the ex parte emergency order is issued
was unavailing; the statute provides that a hearing must be scheduled
no later than fourteen days after the ex parte emergency order is issued,
but does not provide that the hearing must be both scheduled and
completed within that time period, and, when read together as a consis-
tent whole, it was obvious that the statute contemplates that the hearing
may not be completed within fourteen days of the emergency ex parte
order, as the statute specifically provides for a postponement and contin-
uance under certain conditions, and to require the hearing to be com-
pleted within fourteen days may lead to an absurd result if all parties
are unable to present evidence within that time period.
3. The plaintiff could not prevail on her claim that the trial court’s ex parte
order expired automatically after thirty days, pursuant to the applicable
rule of practice (§ 4-5), and that the court, thus, lost jurisdiction over
the ex parte application; the court scheduled and commenced the May,
2015 hearing on the ex parte emergency order within fourteen days
from the date that the order was issued, and where, as here, the trial
court determined on each day of the hearings, on the basis of the
evidence presented, that there was good cause for the ex parte order
to remain in effect, the order did not automatically expire and remained
in effect until the court properly rendered its judgment.
4. The plaintiff could not prevail on her claim that the trial court violated
her constitutional right to procedural due process by entering the ex
parte custody order and then extending the order for an unreasonably
lengthy period of time: it was not necessary for this court to determine
at what point a delay in the postdeprivation hearing would become a
violation of the plaintiff’s right to due process because no constitutional
violation occurred, as the plaintiff was provided with ample opportunity
to be heard on the matter, and, although the postdeprivation hearing
spanned 112 days following the entry of the ex parte emergency order,
the plaintiff contributed to the delay by presenting multiple witnesses
out of order, filing motions that had to be addressed and expanding the
scope of evidence; moreover, the plaintiff waived her right to object
to the length of the hearing, given her consent to the four scheduled
postponements and continuances, as well as her course of conduct over
the 112 days that the hearing took to complete.
5. The trial court’s finding that an immediate and present risk of psychologi-
cal harm to the child existed as a result of the May, 2015 confrontation
between the child and the plaintiff was not clearly erroneous and was
supported by sufficient evidence in the record; the evidence presented
showed that the child was visibly upset immediately following the May,
2015 incident and expressed his desire to never see the plaintiff again,
and evidence of a decline in the child’s psychological well-being follow-
ing the incident, as reflected by his academic and behavioral regression,
demonstrated that the child was deeply affected by the incident.
Argued April 25—officially released October 31, 2017
Procedural History
Action for custody and visitation rights as to the
parties’ minor child, brought to the Superior Court in
the judicial district of Hartford, where the court, Simo´n,
J., granted the defendant’s ex parte application to sus-
pend the plaintiff’s visitation rights; thereafter, follow-
ing evidentiary hearings, the court, Simo´n, J., rendered
judgment sustaining the emergency ex parte custody
order, from which the plaintiff appealed to this court;
subsequently, the court Simo´n, J., issued certain orders
regarding therapy for the minor child, and the plaintiff
filed an amended appeal with this court; thereafter, the
court, Simo´n, J., issued an articulation of its deci-
sion. Affirmed.
Charles D. Ray, with whom was Brittany A. Killian,
for the appellant (plaintiff).
John C. Lewis III, with whom, on the brief, was Juri
E. Taalman, for the appellee (defendant).
Robert J. Kor, for the guardian ad litem of the
minor child.
Opinion
PELLEGRINO, J. The plaintiff, Denise A. Garvey,
appeals from the judgment of the trial court sustaining
the emergency ex parte custody order entered pursuant
to General Statutes § 46b-56f1 denying the plaintiff visi-
tation with the parties’ child. The order was entered
pursuant to the application of the defendant, Stanley
M. Valencis. On appeal, the plaintiff claims that: (1) the
court improperly entered and extended the emergency
ex parte custody order in violation of § 46b-56f, Practice
Book § 4-5, and the plaintiff’s constitutional right to
due process, and (2) there was insufficient evidence to
conclude, as the court did, that the incident giving rise to
the emergency ex parte order constituted an immediate
and present risk of psychological harm to the child.2
We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The parties, who never married one
another, lived together for a short period of time during
the plaintiff’s pregnancy but separated after the birth of
their child in 2002. The parties have litigated custodial,
support, and visitation rights throughout the child’s life.
Notably, the defendant was awarded, and has main-
tained, sole legal and primary physical custody of the
child since 2005 pursuant to a Massachusetts judgment.
The file in the present matter was opened on June 8,
2007, by action of the plaintiff, who sought to register
and enforce the foreign child custody determination in
this state. Emily Moskowitz, an attorney, was appointed
guardian ad litem for the child on May 20, 2010. On
January 14, 2013, the parties stipulated to a gradual
increase in the plaintiff’s visitation with the child.
On May 10, 2015, a physical confrontation occurred
between the child and the plaintiff during a regularly
scheduled visit at the plaintiff’s home. Believing that
his mother was recording a conversation with him
regarding a prior missed visit, the child texted the defen-
dant stating that he was not okay and wanted to return
home. Shortly thereafter, the defendant received a
phone call from the child, but the child did not respond
when the defendant answered the phone. Instead, the
defendant heard a ‘‘significant disturbance.’’ Specifi-
cally, the defendant heard the child say: ‘‘Let me go.
You’re hurting me. Stop.’’ The defendant’s wife and the
guardian ad litem also listened to the disturbance. After
conferring with the guardian ad litem, the defendant
drove to the plaintiff’s home to pick up the child. The
police were notified of the situation and arrived at the
plaintiff’s home shortly after the defendant. The police,
after interviewing the plaintiff and the then twelve and
one-half year old child, and consulting with the guardian
ad litem, concluded it was in the child’s best interest
for him to return home with the defendant.
On May 12, 2015, the defendant filed an application
for an emergency ex parte order of custody pursuant
to § 46b-56f. That same day, the court found that an
immediate and present risk of physical or psychological
harm to the child existed and granted the defendant’s
ex parte application. The court suspended the plaintiff’s
visitation rights and denied her any contact with the
child. The court scheduled a hearing on the matter to
be held nine days later, on May 21, 2015.
The court conducted an evidentiary hearing on the
ex-parte application over several days: May 21, June
16, June 24, and September 1, 2015. Both parties were
represented by counsel. Numerous witnesses testified,
including the parties and the guardian ad litem. On
September 2, 2015, the court issued a memorandum of
decision on the ex parte order of custody, finding ‘‘by
clear and convincing evidence that the orders of May
12, 2015, were appropriately entered and that a current,
immediate and present risk of psychological harm to
the child exists.’’
Following oral argument before us, we ordered the
court to articulate the factual basis for its conclusion
that a current, immediate, and present risk of psycho-
logical harm to the child existed. The court articulated,
among other things, that several days after the incident,
the child was still visibly upset and stated to the guard-
ian ad litem that the plaintiff had ‘‘hit him, pushed him,
and threw him to the ground,’’ and that ‘‘he never
wanted to see [her] again.’’ The child’s therapist recom-
mended that the child not see the plaintiff at that time.
According to the child’s tutor, the child was upset,
aggravated, and agitated. His ability to stay focused and
complete his work had decreased drastically. Academi-
cally, the child had regressed by two to three years.
Additional facts will be set forth as necessary.
I
The plaintiff claims that the court improperly entered,
and extended, the emergency ex parte custody order
in violation of § 46b-56f (c), Practice Book § 4-5, and
the plaintiff’s constitutional right to due process under
the fourteenth amendment of the United States consti-
tution and article first, §§ 8 and 10, of the constitution
of Connecticut.
As a preliminary matter, we identify our standard of
review and the general legal principles relevant to our
analysis. ‘‘The interpretation and application of a stat-
ute, and thus a Practice Book provision, involves a
question of law over which our review is plenary.’’ Wise-
man v. Armstrong, 295 Conn. 94, 99, 989 A.3d 1027
(2010). ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) Wilton Meadows Ltd. Partnership v.
Coratolo, 299 Conn. 819, 825, 14 A.3d 982 (2011).
A
The plaintiff first claims that the court improperly
entered the emergency ex parte custody order in viola-
tion of § 46b-56f (c). Specifically, the plaintiff argues
that such relief was improper because § 46b-56f (c)
‘‘requires an effort to hear from the other party,’’ and
that she was available, desired to participate, and was
present in the courthouse when the court entered the
ex parte order. The defendant argues that § 46b-56f (b)
does not require the court to hear from the respondent.
We agree with the defendant.
In accordance with § 1-2z, we begin with the relevant
text of § 46b-56f. Section 46b-56f (b) provides that: ‘‘The
application [to the Superior Court for an emergency ex
parte order of custody] shall be accompanied by an
affidavit made under oath which includes a statement
(1) of the conditions requiring an emergency ex parte
order, (2) that an emergency ex parte order is in the
best interests of the child, and (3) of the actions taken
by the applicant or any other person to inform the
respondent of the request or, if no such actions to
inform the respondent were taken, the reasons why the
court should consider such an application on an ex
parte basis absent such actions.’’ Section 46b-56f (c)
provides in relevant part that: ‘‘The court shall order a
hearing on any application made pursuant to this sec-
tion. If, prior to or after such hearing, the court finds
that an immediate and present risk of physical danger
or psychological harm to the child exists, the court
may, in its discretion, issue an emergency order for the
protection of the child . . . .’’
The text of § 46b-56f (b) does not require that the
court provide a respondent with the opportunity to be
heard prior to ordering emergency ex parte relief. See
Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398,
408, 891 A.2d 959 (2006) (‘‘when the language is read
as so applied, it appears to be the meaning and appears
to preclude any other likely meaning’’ [emphasis in orig-
inal; internal quotation marks omitted]). Section 46b-
56f (b) merely provides that the applicant submit an
affidavit detailing the conditions requiring an emer-
gency ex parte order, stating that the emergency ex
parte order is in the best interests of the child, and
stating the actions taken to notify the respondent, or
if no actions were taken to inform the respondent,
explaining why the court should consider such an appli-
cation on an ex parte basis absent such notification
efforts.3 Accordingly, we conclude that § 46b-56f does
not require the court to hear from the respondent before
granting the application for emergency ex parte order
of custody and issuing appropriate ex parte orders.
B
The plaintiff next claims that § 46b-56f (c) mandates
that a hearing be completed within fourteen days after
the ex parte emergency order is issued. We disagree.
Section 46b-56f (c) provides in relevant part: ‘‘The court
shall order a hearing on any application made pursuant
to this section. If, prior to or after such hearing, the
court finds that an immediate and present risk of physi-
cal danger or psychological harm to the child exists,
the court may, in its discretion, issue an emergency
order for the protection of the child . . . . If relief
on the application is ordered ex parte, the court shall
schedule a hearing not later than fourteen days after
the date of such ex parte order. If a postponement of
a hearing on the application is requested by either party
and granted, no ex parte order shall be granted or con-
tinued except upon agreement of the parties or by order
of the court for good cause shown.’’ (Emphasis added.)
To resolve the plaintiff’s claim, we turn to the tenets
of statutory construction. The court’s fundamental
objective in construing a statute ‘‘is to ascertain and
give effect to the apparent intent of the legislature. . . .
In other words, [the court] seek[s] to determine, in a
reasoned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning . . . § 1-2 directs
[the court] first to consider the text of the statute itself
and its relationship to other statutes.’’ (Internal quota-
tion marks omitted.) Allen v. Commissioner of Revenue
Services, 324 Conn. 292, 307–308, 152 A.3d 488 (2016),
cert. denied, U.S. , 137 S. Ct. 2217, 198 L. Ed.
2d 659 (2017). ‘‘It is the duty of the court to interpret
statutes as they are written . . . and not by construc-
tion read into statutes provisions which are not clearly
stated. . . . Moreover, principles of statutory con-
struction require the court to construe a statute in a
manner that will not frustrate its intended purpose or
lead to an absurd result.’’ (Citation omitted; internal
quotation marks omitted.) Mack v. LaValley, 55 Conn.
App. 150, 165–66, 738 A.2d 718, cert. denied, 251 Conn.
928, 742 A.2d 363 (1999).
A statute is plain and unambiguous when ‘‘the mean-
ing . . . is so strongly indicated or suggested by the
[statutory] language as applied to the facts of the case
. . . that, when the language is read as so applied, it
appears to be the meaning and appears to preclude
any other likely meaning.’’ (Emphasis omitted; internal
quotation marks omitted.) Kinsey v. Pacific Employers
Ins. Co., supra, 277 Conn. 407–408. ‘‘[S]tatutes should
be interpreted so as to form a rational, consistent whole,
rather than an irrational and inconsistent statutory
scheme. . . . Another principle is that statutes should
be interpreted so as to avoid bizarre or unworkable
results . . . and courts should interpret statutes on the
premise that the legislature intended to accomplish rea-
sonable result. . . . The final principle is that statutes
should be interpreted so as to conform to common
sense, rather than so as to violate it.’’ (Citations omitted;
internal quotation marks omitted.) Commission on
Human Rights & Opportunities v. Housing Authority,
117 Conn. App. 30, 45–46, 978 A.2d 136 (2009), appeal
dismissed, 302 Conn. 158, 24 A.3d 596 (2011).
The question presented is the meaning of the lan-
guage ‘‘schedule a hearing.’’ The plaintiff contends that
‘‘schedule a hearing’’ requires the court to hold a hearing
and complete it within fourteen days of the ex parte
emergency order. We do not agree. The statute provides
that a hearing must be scheduled no later than fourteen
days after the ex parte emergency order is issued. It
does not provide that the hearing must be scheduled
and completed within that time period. We reject the
plaintiff’s invitation to read words into a statute that
are not there. If the legislature wanted the hearing com-
pleted within fourteen days, it knows how to enact
legislation consistent with its intent. See Fedus v. Plan-
ning & Zoning Commission, 278 Conn. 751, 771 n.17,
900 A.2d 1 (2006).
When § 46b-56f (c) is read together as a consistent
whole, it is obvious that the statute contemplates that
the hearing may not be completed within fourteen days
of the emergency ex parte order. The statute specifically
provides for a postponement and continuance under
certain conditions. To require the hearing to be com-
pleted within fourteen days may lead to an absurd result
if all parties are unable to present evidence within that
time period. The statute promotes the best interest of
the child by establishing an expeditious procedure by
which the court can promptly protect the child from
physical and psychological harm and protect the due
process right of the child’s parent. The notion that a
hearing concerning the custody of a minor child can
invariably be completed within fourteen days of the date
the emergency ex parte order is issued is unrealistic in
light of the schedules of the court and counsel. Common
sense would dictate that the hearing continue until all
parties have been given an opportunity to present their
respective cases. For the foregoing reasons, the plain-
tiff’s claim fails.4
C
The plaintiff next claims that the court’s ex parte
order expired ‘‘automatically’’ after thirty days pursuant
to Practice Book § 4-5. The plaintiff argues that because
the order expired, the court lost jurisdiction over the
ex parte application, and the order entered pursuant
to the court’s memorandum of decision was ‘‘a nullity.’’
We do not agree.
Practice Book § 4-5 (b) provides in relevant part that:
‘‘When an application for a temporary injunction is
granted without . . . a hearing, the court shall sched-
ule an expeditious hearing as to whether the temporary
injunction should remain in effect. Any temporary
injunction which was granted without a hearing shall
automatically expire thirty days following its issuance,
unless the court, following a hearing, determines that
said injunction should remain in effect.’’ (Emphasis
added.)
Section 46b-56f (c) provides in relevant part: ‘‘If relief
on the application is ordered ex parte, the court shall
schedule a hearing not later than fourteen days after
the date of such ex parte order. If a postponement of
a hearing on the application is requested by either party
and granted, no ex parte order shall be granted or con-
tinued except upon agreement of the parties or by order
of the court for good cause shown.’’ (Emphasis added.)
In the present case, the court scheduled and com-
menced a hearing on the ex parte emergency order
within fourteen days from the date that the order was
issued. On the first day of the hearing, the plaintiff
was permitted to present testimony from some of her
witnesses during the time allotted to the defendant to
accommodate the schedules of some of the plaintiff’s
witnesses. At the conclusion of the first day of the
hearing, the court stated: ‘‘So what I’ll do at this time
. . . the current orders remain in place as to the ex
parte order. I will order the parties to go down and
see [the scheduling coordinator] in regards to a new
schedule. . . . I know [that the guardian ad litem],
based on other cases I had with her, is on vacation next
week. . . . So, I’ll try and, you know, schedule you in.’’
Counsel for the plaintiff, Martha Dean, stated, ‘‘okay.’’
In other words, the plaintiff did not object to the court’s
continuing the emergency ex parte order.
The hearing continued on June 16, 2015. The follow-
ing colloquy transpired between the court and Dean:
‘‘[Attorney] Dean: I’m going to move again in the
short term to have the normal parenting plan restored
immediately. This child has a therapist. [The child] has
sole custody with [the defendant]. He lives with [the
defendant]. We’re talking only about visitation.
‘‘We’ve heard no testimony of any substantial, signifi-
cant injury. In fact, we heard testimony to the contrary
from the police and from the [guardian ad litem], and
we move, again, on the spot, right now, asking the court
to put the current orders in place until we can get to
the end of this hearing.
‘‘The Court: Attorney Dean, you’re out of line. The
evidence that I’ve heard really is not as you say it, and
again, I’m giving you, still, the opportunity to put on
your witnesses. But [I do not], based on what I’ve heard
here so far, have the same mindset that you have. My
orders remain in place.’’ The plaintiff did not further
object to the continuance of the emergency ex parte
order.
The hearing reconvened on the afternoon of June 24,
2015, at which time the court stated, in part: ‘‘So, all
right, folks, look, we’re reaching our third day of hear-
ings on the emergency ex parte order. . . . So, I’d like
to move this along as quickly as we can.’’ Immediately
thereafter, Dean asked that one of the plaintiff’s wit-
nesses be taken out of order. The court granted the
request.
At the conclusion of the hearing on the afternoon of
June 24, 2015, the court indicated to counsel that there
would be a two month continuance due to the schedules
of two other judges. The court stated: ‘‘I will have to
do what I need to do based on the evidence that’s
presented when the hearing finally concludes. But by
then, three and one-half months will have passed since
the original incident date. It will be, I believe, appro-
priate if the parties determine it to be in the child’s best
interest that [the parties] perhaps have a conversation
with the guardian ad litem between now and September
1, [2015], two months from now, in regards to current
orders and/or what may be the future of this particu-
lar case.’’
‘‘[Attorney] Dean: Your Honor, the important thing
to know—we can’t get into discussions, but on some-
thing as incredible as this, that this mother’s ability to
see her child has been conditioned on (indiscernible)
the removal action of the guardian ad litem. That is so
unethical and unscrupulous [that] I have to bring it to
your attention.
‘‘The Court: Attorney Dean, I have had the opportu-
nity to listen to all the testimony so far. I don’t see
your concern.
‘‘[Attorney] Dean: I don’t get how (indiscernible)
schedules. . . .
‘‘The Court: [A]s I’ve stated, there is going to be a
two month continuance because of the scheduling of
the two judges. So, I believe if it’s something the attor-
neys wish to do, they should discuss the matter with
the guardian ad litem, and see if there is any middle
road here that would be appropriate. If not, we just
continue, and we’ll see you back here September 1,
[2015].
‘‘[Attorney] Dean: Your Honor, could I ask one last
request, and that is because we are so close to the close
of the moving party’s evidence, that if even for an hour
or so, this could be concluded, we could at least move
for the failure to make out a prima facie case on the
evidence and allow . . . .
‘‘The Court: Counsel, there is no way that I’m going
to listen to that type of motion based on what I’ve
heard. It’s just not going to happen.’’ The plaintiff did
not object.
Here, the trial court determined following each day
of hearing, on the basis of the evidence presented, that
there was good cause for the ex parte order to remain
in effect. Therefore, the order did not automatically
expire and remained in effect until September 2, 2015,
when the final orders were entered. Accordingly, the
court retained jurisdiction over the orders and properly
rendered judgment in its September 2, 2015 memoran-
dum of decision.
D
The plaintiff’s fourth claim is that the court violated
her constitutional right to procedural due process under
the fourteenth amendment to the United States consti-
tution and article first, §§ 8 and 10 of the constitution
of Connecticut by entering and extending the ex parte
custody order. Specifically, the plaintiff argues that a
postdeprivation hearing spanning 112 days following
the entry of an ex parte emergency order is unreason-
able, and that § 46b-56f (c) should be invalidated as
applied to the facts of her case. In response, the defen-
dant argues that the plaintiff had her opportunity to be
heard and ‘‘caused much of the delay . . . by her own
requests and motions.’’
As a preliminary matter, we identify our standard of
review and the general legal principles relevant to our
analysis. The due process clause demands that an indi-
vidual be afforded adequate notice and a reasonable
opportunity to be heard when the government deprives
her of a protected liberty interest.5 See Mathews v.
Eldridge, 424 U.S. 319, 333–34, 96 S. Ct. 893, 47 L. Ed.
2d 18 (1976). ‘‘[D]ue process is flexible and calls for
such procedural protections as the particular situation
demands.’’ (Internal quotation marks omitted.) State v.
Joyner, 225 Conn. 450, 470–71, 625 A.2d 791 (1993). The
United States Supreme Court has construed the due
process clause to further require that a postdeprivation
hearing ‘‘proceed and be concluded without appreciable
delay.’’ Barry v. Barchi, 443 U.S. 55, 66, 99 S. Ct. 2642,
61 L. Ed. 2d 365 (1979).
The following additional facts are relevant to this
claim. The evidentiary hearing began on May 21, 2015,
with the plaintiff’s counsel being permitted to call three
of her witnesses out of order.6 On June 16, 2015, before
continuing with testimony, the court addressed the
plaintiff’s pending motion in limine to preclude certain
evidence and the testimony from the guardian ad litem.
The motion was summarily denied. On June 24, 2015,
the hearing began with the plaintiff’s counsel calling
another witness out of order. Additionally, the plaintiff
expanded the scope of evidence by introducing testi-
mony concerning a missed visitation on May 6, 2015,
an event which did not give rise to the ex parte proceed-
ing. The May 6, 2015 visitation topic was at issue during
each of the four days of the hearing on the ex parte
emergency order. On the last day of hearing, the court
admonished the plaintiff’s counsel for her ‘‘protracted
litigious presentation.’’7
The record, when taken as a whole, indicates that
the plaintiff was given ample opportunity to be heard on
the matter. The plaintiff called seven witnesses, many of
whom were called out of order, delaying the defendant’s
case-in-chief. Additionally, the plaintiff filed a number
of motions that needed to be addressed during the hear-
ing. Furthermore, the court granted the plaintiff wide
latitude in litigating the validity of the order, including
expanding the scope of testimony. On the basis of the
foregoing facts, we conclude that the plaintiff contrib-
uted to the delayed resolution of this matter.
‘‘At some point, a delay in the post-termination hear-
ing would become a constitutional violation.’’ Board of
Education v. Loudermill, 470 U.S. 532, 547, 105 S. Ct.
1487, 84 L. Ed. 2d 494 (1985); see also id. (finding that
nine month adjudication is not ‘‘unconstitutionally
lengthy per se’’). Here, however, we need not determine
at what point a delay in the postdeprivation hearing
would become a violation of the plaintiff’s constitu-
tional rights because we conclude that no constitutional
violation occurred, as the plaintiff was provided with
a reasonable opportunity to be heard and she contrib-
uted to the delay of the proceedings.
E
Alternatively, we conclude that the plaintiff waived
her right to object to the length of the hearing, given
her consent to the four scheduled postponements and
continuances, and her course of conduct over the 112
days that the hearing took to complete.
We begin by examining our law regarding the general
concept of waiver. ‘‘[M]andatory time limitations must
be complied with absent an equitable reason for excus-
ing compliance, including waiver or consent by the par-
ties.’’ (Internal quotation marks omitted.) Lostritto v.
Community Action Agency of New Haven, Inc., 269
Conn. 10, 35–36, 848 A.2d 418 (2004). ‘‘[W]aiver is an
intentional relinquishment or abandonment of a known
right or privilege. . . . It involves the idea of assent,
and assent is an act of understanding. . . . The rule is
applicable that no one shall be permitted to deny that
[she] intended the natural consequences of [her] acts
and conduct. . . . In order to waive a claim of law it
is not necessary . . . that a party be certain of the
correctness of the claim of its legal efficacy. It is enough
if [she] knows of the existence of the claim and of
its reasonably possible efficacy.’’ (Internal quotation
marks omitted.) State v. Kitchens, 299 Conn. 447, 469,
10 A.3d 942 (2011). ‘‘Waiver does not have to be express,
but may consist of acts or conduct from which waiver
may be implied. . . . In other words, waiver may be
inferred from the circumstances if it is reasonable to
do so.’’ (Internal quotation marks omitted.) Stewart v.
Tunxis Service Center, 237 Conn. 71, 80–81, 676 A.2d
819 (1996).
As set forth in part I C of this opinion, at the end of
the May 21, 2015 hearing, the court directed the parties
to the case flow office to schedule additional dates for
the hearing, emphasizing that the current ex parte order
would remain in place as the hearing continued. The
plaintiff did not object. The record indicates that the
parties then reported to case flow and agreed to con-
tinue the hearing to June 16, June 24, and September
1, 2015. The record reveals that the court had a date
available prior to June 16, 2015, but the plaintiff or her
counsel were unavailable. On June 16, 2015, the plaintiff
raised concerns about the length of the hearing, as it
became apparent that the hearing would likely conclude
on September 1, 2015. On June 24, 2015, the plaintiff
asked that the hearing be concluded sooner than Sep-
tember 1, 2015. After this request was denied by the
court, she then asked for an extra hour so that the
defendant could conclude his case-in-chief, and the
plaintiff could move to dismiss on the ground that the
defendant had failed to make out a prima facie case.
The court denied the plaintiff’s request, stating that it
would not consider such a motion on the basis of the
facts established. On September 1, 2015, the plaintiff,
without prior notice to the court or the defendant,
moved to terminate the hearing pursuant to Practice
Book § 4-5, claiming for the first time that her constitu-
tional right to due process had been violated by continu-
ing the hearing. Following oral argument, the court
denied the plaintiff’s motion. The plaintiff then objected
to proceeding with the hearing, but was forced to pro-
ceed by order of the court.
‘‘Our Supreme Court has long held that [a party] may
not pursue one course of action at trial for tactical
reasons and later on appeal argue that the path he
rejected should now be open to him.’’ (Internal quota-
tion marks omitted.) State v. Barber, 64 Conn. App.
659, 669–70, 781 A.2d 464, cert. denied, 258 Conn. 925,
783 A.2d 1030 (2001). Here, the plaintiff agreed to the
dates upon which the hearing was scheduled. There-
fore, on the basis of the plaintiff’s acts, conduct, and
surrounding circumstances, we determine that she
impliedly waived her right to object to the length of
the hearing.
II
The plaintiff also claims that the court lacked suffi-
cient evidence to support its finding that an immediate
and present risk of psychological harm to the child
existed, pursuant to § 46b-56f. Specifically, the plaintiff
argues that ‘‘psychological harm’’ under § 46b-56f
requires a greater showing than was provided, and that
the defendant failed to provide testimony from a mental
health expert or disinterested fact witness to establish
a risk of psychological harm.8 We disagree.
‘‘The proper standard of proof in a trial on an order
of temporary custody is the normal civil standard of a
fair preponderance of the evidence. . . . We note that
[a]ppellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
The trial court’s findings are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . We
cannot retry the facts or pass on the credibility of the
witnesses. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or 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. . . . With those principles in mind, we will
review the evidence presented at the hearing . . . to
determine whether the court’s determination is sup-
ported by the evidence in the record.’’ (Internal quota-
tion marks omitted.) In re Paul O., 125 Conn. App. 212,
218, 6 A.3d 1209 (2010).
The court was presented with the following relevant
evidence. The police interviewed the child at the plain-
tiff’s home following the May 10, 2015 incident. They
noted that he was ‘‘extremely upset; his face was
flushed, his eyes were red, and was crying with tears
running down his face.’’ The child repeatedly stated
that he wanted to go home. The police provided the
child with his Miranda rights,9 and stated that this might
have contributed to the child’s emotional state. The
court, however, found the reading of the child’s
Miranda rights ‘‘to be less significant in comparison to
the overall events of the day in question.’’ After speaking
with the plaintiff, the defendant, the child, and the
guardian ad litem, the police concluded that ‘‘it would
be appropriate and in the child’s best interest [for him]
to go home with [the defendant] because they did not
believe that there would be a civil visitation past that
point.’’
The guardian ad litem testified as a fact witness and
in her legal capacity at the June 16 and September 1,
2015 hearings. Specifically, she testified that she over-
heard a portion of the May 10, 2015 altercation via
telephone and that she heard the child say ‘‘don’t hit
me . . . don’t touch me . . . don’t push me.’’ The
guardian ad litem also met with the child a couple of
days after the incident. At that meeting, the child was
still visibly upset and told the guardian ad litem that
the plaintiff had ‘‘hit him, pushed him and threw him
to the ground’’ and that ‘‘he never wanted to see [her]
again.’’ The guardian ad litem spoke with the child’s
therapist, who recommended that the child not see the
plaintiff ‘‘at this time.’’ She also spoke with the child’s
tutor, who indicated that the child was now very upset,
very aggravated, and agitated. The tutor also indicated
that the child’s ability to stay focused and complete his
work had decreased drastically, and he had regressed
back to where he was two or three years ago. The
defendant and his wife similarly testified that the child’s
academics had regressed. In addition, the child wet his
bed directly following the incident. On the basis of the
evidence presented, the court concluded, by both a
fair preponderance of the evidence and by clear and
convincing evidence, as was set forth in detail in its
articulation, filed on May 22, 2017, that there existed
an immediate and present risk of psychological harm
to the child. Therefore, the court concluded it was in the
child’s best interest to grant the defendant’s application
and order that the child’s visitation with the plaintiff
cease.
We conclude that there was sufficient evidence to
support the court’s conclusion of an immediate and
present risk of psychological harm to the child as a
result of the incident on May 10, 2015, at the plaintiff’s
home. Although § 46b-56f does not contain explicit cri-
teria for the court to consider when analyzing an ‘‘imme-
diate and present risk of psychological harm,’’ we
cannot conclude that the court’s finding was clearly
erroneous in light of the evidence presented, which
revealed that the child was deeply affected by the May
10, 2015 incident. He was visibly upset immediately
following the incident and expressed his desire to never
see the plaintiff again. There was evidence of a decline
in the child’s psychological well-being following the
incident, including evidence of his academic and behav-
ioral regression. The evidence is sufficient to support
the court’s conclusion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes 46b-56f (a) provides: ‘‘Any person seeking custody of
a minor child pursuant to section 46b-56 or pursuant to an action brought
under section 46b-40 may make an application to the Superior Court for an
emergency ex parte order of custody when such person believes an immedi-
ate and present risk of physical danger or psychological harm to the
child exists.’’
2
Our review of the record revealed that on January 5, 2017, the court
reopened the proceedings and ordered the child to call the plaintiff once a
week and permitted the child to call her more often, if the child so desired.
By order dated June 21, 2017, this court, sua sponte, ordered the parties to
file briefs as to why this matter is not moot. The plaintiff filed a brief arguing
that the matter is not moot because there is practical relief that can be
granted to her. See, e.g., In re Jeremy M., 100 Conn. App. 436, 445, 918 A.2d
944, cert. denied, 282 Conn. 927, 926 A.2d 666 (2007) (appeal was not moot
where ‘‘[u]pon reversal of the court’s judgment, the respondent would not
be a delinquent, and, therefore, the erasure of his records would be automatic
and mandatory’’); Williams v. Ragaglia, 64 Conn. App. 171, 175, 779 A.2d
803 (2001), aff’d, 261 Conn. 219, 802 A.2d 778 (2002) (reversing trial court’s
dismissal of administrative appeal from revocation of foster care license
where ‘‘practical relief would be the benefit of having a clean record with
the department’’). Specifically, the plaintiff argued that the May 12, 2015
orders are still in effect to prevent her from having physical contact with
the child. She is only permitted to contact him by a weekly phone call.
There is practical relief that could be granted if she prevails on appeal. We
agree with the plaintiff, and accordingly, we address the merits of her claims
on appeal.
3
In the present case, the defendant submitted a three page affidavit with
his application in which he attested to the facts of the May 10, 2015 incident,
the child’s emotional state following the incident, and the child’s unwilling-
ness to visit with the plaintiff in the future. He further attested that his
counsel had spoken with the plaintiff to inform her of the defendant’s
intention to file the application.
4
The plaintiff cited several cases as support for her claim that ‘‘schedule
a hearing’’ means complete the hearing. The cases cited do not stand for
that proposition. Pendleton v. Minichino, Superior Court, judicial district
of Hartford-New Britain, Docket No. 506673 (April 3, 1992) (6 Conn. L. Rptr.
241), upheld the constitutionality of General Statutes § 46b-15, which permits
a court to issue an ex parte order temporarily suspending visitation rights
until the date of the hearing that must be held no later than fourteen days
following the issuance of the order. Id., 247. The language of § 46b-15 is
virtually identical to § 46b-56f (c) and the case is not inconsistent with the
present matter. Morera v. Thurber, 162 Conn. App. 261, 131 A.3d 1155 (2016),
concerns the construction of the word ‘‘shall’’ with respect to when a hearing
must be held; it does not address when the hearing must be completed. In
State v. Reddy, 135 Conn. App. 65, 42 A.3d 406 (2012), this court was asked
to determine whether a fourteen day hearing requirement contained in
General Statutes § 29-38c (d) was mandatory or subject to waiver.
5
The parties do not dispute that a protected liberty interest has been
implicated. Indeed, a parent has a fundamental liberty interest in the ‘‘com-
panionship, care, custody, and management of his or her children . . . .’’
(Internal quotation marks omitted.) Fish v. Fish, 285 Conn. 24, 117, 939
A.2d 1040 (2008). Therefore, a parent may not be deprived of his or her
fundamental liberty interest without being afforded procedural due process.
See generally Mathews v. Eldridge, 424 U.S. 319, 333–34, 96 S. Ct. 893, 47
L. Ed. 2d 18 (1976).
6
The record also indicates that the court had a date available in between
the May 21, 2015 and June 16, 2015 hearing dates, however, the plaintiff or
her attorney indicated she was unavailable.
7
Specifically, the court stated: ‘‘[Y]ou have mounted an extremely, I want
to say, protracted litigious presentation that is self-serving, that can only
be characterized as evading the factual basis of this case. I have allowed
you voluminous latitude and yet you continue, continue to take advantage
of the court’s opportunity to address the matters in an appropriate fashion.’’
8
We are unpersuaded by the plaintiff’s claim that there was no testimony
from a disinterested fact witness. The record indicates that the plaintiff
continually challenged the guardian ad litem’s ability to remain independent,
impartial, objective, and fair. The court, however, made no such finding.
9
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).