In re Natalie J.

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IN RE NATALIE J.*
(AC 35785)
Beach, Alvord and Pellegrino, Js.
Argued October 23, 2013—officially released January 29, 2014**
(Appeal from Superior Court, judicial district of New
Britain, Juvenile Matters, Gleeson, J. [neglect
adjudication; transfer of guardianship]; T. Santos, J.
[motion to open]; Frazzini, J. [motion for revocation of
commitment; judgment of dismissal].)
Angela Christine J., self-represented, the appellant
(respondent mother).
Carolyn Signorelli, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Elizabeth Potts Berman, for the minor child.
Robert W. Lewonka, for the guardian ad litem.
Opinion
BEACH, J. The respondent mother, Angela J.,
appeals1 from the judgment of the trial court granting
the motion of the petitioner, the Commissioner of Chil-
dren and Families, to dismiss her motion to revoke the
commitment of her minor child, Natalie J. On appeal,
Angela J. argues that the trial court: (1) improperly
granted the petitioner’s motion to dismiss her motion
to revoke commitment on the ground that she failed to
establish a prima facie case; (2) abused its discretion
by taking judicial notice of the September 15, 2011
social study that was prepared by the Department of
Children and Families (department) and entered as a
full exhibit during the December 22, 2011 hearing on
the neglect petition; (3) abused its discretion by taking
judicial notice of, rather than admitting as a full exhibit,
Angela J.’s response to the petitioner’s summary of facts
substantiating neglect; and (4) abused its discretion by
excluding a tape recording of a telephone conversation
between Angela J. and Natalie that allegedly took place
on May 14, 2012. We disagree and affirm the judgment
of the trial court.
The following facts are relevant to this appeal. On
August 4, 2011, after receiving a referral suggesting
physical and emotional neglect of fourteen year old
Natalie from the Connecticut Children’s Medical Center
(medical center), the petitioner sought and was granted
an order of temporary custody. In support of its motion
for that order, the petitioner submitted an affidavit pre-
pared by Dr. Nina Livingston, the medical director of
Hartford Regional Child Abuse Services at the medical
center.2 The petitioner also filed a neglect petition and
an affidavit seeking out-of-home placement of Natalie.3
Along with the neglect petition, the petitioner filed a
summary of facts substantiating neglect.4 Angela J. did
not file a response to the petitioner’s summary of facts
substantiating neglect until eight months after the hear-
ing on the neglect petition.
A preliminary hearing on the order of temporary cus-
tody was scheduled for August 12, 2011. At the prelimi-
nary hearing, at which Angela J. failed to appear, the
court ordered specific steps including, but not limited
to, Angela J. and her husband Christopher J., Natalie’s
father, accepting in-home support services recom-
mended by the petitioner, participating in individual
counseling and separate psychological evaluations, and
cooperating with Natalie’s therapy, as recommended
by the department.
A full hearing on the petitioner’s neglect petition was
scheduled for September 15, 2011.5 Angela J. was not
present at that hearing and the court accordingly
entered a default judgment.
On December 22, 2011, the court adjudicated Natalie
neglected and found that it was in her best interest to
be committed to the care and custody of the petitioner.
The court also granted an order of out-of-state place-
ment pursuant to an approved interstate compact study
regarding Natalie’s maternal grandmother, Jacqueline
S. In making its decision, the court considered: (1) the
default judgments entered against Angela J. and Chris-
topher J.6 for failure to appear; and (2) a social study
prepared by the department, dated September 15, 2011,
(social study), which was filed with the court as a
full exhibit.7
According to the social study, Angela J. began experi-
encing mental health issues, including symptoms of
paranoia, when she was terminated from her place of
employment.8 Department social workers reported that
Natalie suffered from severe acne, for which Angela J.
instructed her not to take prescribed medication, risk-
ing permanent scarring. Department social workers
noted that Natalie had no history of psychiatric treat-
ment; however, she presented as ‘‘very anxious’’ and
suspicious of people in authority and struggled with
socializing with her peers and others. The report indi-
cated that Natalie was diagnosed with anxiety disorder
as a result of continued exposure to Angela J.’s delu-
sions and insistence that people were following her,
watching her, and trying to kill her.
On June 21, 2012, the court approved a permanency
plan contemplating the transfer of guardianship of Nata-
lie to Jacqueline S. On June 28, 2012, Angela J. filed an
appearance as a self-represented party. On July 19, 2012,
Angela J. appeared at the New Britain juvenile court.
She filed a number of documents, including a motion
to open the December 22, 2011 judgment of neglect, a
motion to reconsider the denial of her motion to open
judgment, and a petition for a new trial, all of which
were denied. On August 15, 2012, eight months after
the neglect hearing, Angela J. submitted her response to
the petitioner’s summary of facts substantiating neglect.
On March 20, 2013, the petitioner filed a required
motion for review of permanency plan.9 The petitioner
filed a permanency plan contemplating the transfer of
guardianship of Natalie to Jacqueline S., with whom
she had been residing since December, 2011.
On May 8, 2013, Angela J. filed a ‘‘motion to reinstate
guardianship’’ to her, which is the subject of this appeal.
The court and all parties agreed that the motion would
be treated as a motion to revoke commitment and the
court scheduled an evidentiary hearing for June 10,
2013.10 On May 23, 2013, the court ordered that the
motion be heard in a bifurcated manner: the court
would consider first whether the cause for commitment
no longer existed, and later, if necessary, whether revo-
cation of commitment was in the best interests of
the child.11
At the June 10, 2013 evidentiary hearing, the court
took judicial notice of all pleadings in the file including,
but not limited to, Angela J.’s response to the petition-
er’s summary of facts substantiating neglect filed on
August 15, 2012, the September 15, 2011 social study
entered as an exhibit at the hearing on the neglect
petition, and the motion for review of permanency plan
and social study filed on May 17, 2012. The court
reminded all parties that the subject of the hearing was
a motion for revocation of commitment and that the
purpose of the hearing was whether the cause for com-
mitment still existed.12 The court explained to Angela
J. that, as a result of the default judgment previously
entered following her failure to appear, the facts con-
tained in the neglect petition regarding her mental
health and its emotional and physical impact upon her
child were taken to be true and could not be challenged.
The court explained that all Angela J. could currently
do was to show that the circumstances that existed in
2011 no longer existed.13
At the outset of the presentation of her case, Angela
J., representing herself, attempted to introduce a tape
recording of a telephone conversation between herself
and Natalie that occurred on May 14, 2012. The court
requested an offer of proof. At the close of Angela J.’s
description of the content of the tape recording, both
counsel for Natalie and counsel for the petitioner
objected on the grounds that the evidence proffered
was hearsay and not relevant to the issue of whether
cause for commitment no longer existed. The court
sustained the objection to the introduction of the
tape recording.
Angela J. then attempted to introduce her response to
the petitioner’s summary of facts substantiating neglect,
filed on August 15, 2012 (response to summary of facts),
as a full exhibit. The court sustained the petitioner’s
objection on relevancy grounds but explained that it
would ‘‘take judicial notice of [it] just like I did all other
matters that were filed . . . .’’
Angela J. also attempted to introduce a letter written
by Natalie in September, 2010, and a math exercise
completed by Natalie in October, 2010. The court sus-
tained the petitioner’s objections on relevancy grounds,
explaining that the documents did not provide insight
into the current status of the parties.
Other evidence offered by Angela J. included her
own testimony and that of her husband, Christopher
J., regarding their opinion that there was no basis for
the initial adjudication of neglect and commitment of
Natalie because Angela J. had never been told that she
suffered from mental health issues. They further main-
tained that the adjudicating court improperly had relied
upon the pleadings and social study because the parents
were not present at the hearings to refute the allegations
contained in those documents.
At the close of Angela J.’s presentation of evidence,
counsel for the petitioner, joined by counsel for Natalie,
moved to dismiss the motion for revocation of commit-
ment based on Angela J.’s failure to make out a prima
facie case for the proposition that the cause for commit-
ment no longer existed. In response to the petitioner’s
motion to dismiss, Angela J. argued that the holding of
Suprenant v. Commissioner of Welfare, 21 Conn. Supp.
154, 148 A.2d 669 (1958), prevented the court from ever
having allowed her ‘‘child to be taken away from me
in the first place.’’14 The court granted the petitioner’s
motion to dismiss, ruling: ‘‘And so [Angela J.] having
not offered any evidence that if true would show that
as of this moment the cause for commitment no longer
exists, she did not make a prima facie case and the
motion is dismissed.’’ Angela J. thereafter filed a motion
for reconsideration, which the court denied on June
20, 2013. This appeal followed.15 Additional facts will
be set forth as necessary.
I
Angela J.’s first claim is that the trial court improperly
granted the petitioner’s motion to dismiss for failure to
make out a prima facie case for revocation of commit-
ment of Natalie. We disagree.
General Statutes § 46b-129 (m) provides: ‘‘The com-
missioner, a parent or the child’s attorney may file a
motion to revoke a commitment, and, upon finding that
[1] cause for commitment no longer exists, and [2] that
such revocation is in the best interests of such child
or youth, the court may revoke the commitment of such
child or youth. No such motion shall be filed more often
than once every six months.’’ This court’s analysis in
In re Stacy G., 94 Conn. App. 348, 892 A.2d 1034 (2006),
provides guidance on applying § 46b-129 (m). ‘‘[A] natu-
ral parent, whose child has been committed to the cus-
tody of a third party, is entitled to a hearing to
demonstrate that no cause for commitment still exists.
. . . The initial burden is placed on the persons
applying for the revocation of commitment to allege
and prove that cause for commitment no longer exists.
. . . If the party challenging the commitment meets
that initial burden, the commitment to the third party
may then be modified if such change is in the best
interest of the child. . . . The burden falls on the per-
sons vested with guardianship to prove that it would
not be in the best interests of the child to be returned to
his or her natural parents.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 352 n.4.
Practice Book § 15-8 provides in relevant part: ‘‘If,
on the trial of any issue of fact in a civil matter tried
to the court, the plaintiff has produced evidence and
rested, a defendant may move for judgment of dismissal,
and the judicial authority may grant such motion if the
plaintiff has failed to make out a prima facie case.’’ See
Practice Book § 34a-1 (b); see also In re Devon W., 124
Conn. App. 631, 639–41, 6 A.3d 100 (2010) (Practice
Book § 15-8 applies in cases involving termination of
parental rights).
‘‘The standard for determining whether the plaintiff
has made out a prima facie case, under Practice Book
§ 15-8, is whether the plaintiff put forth sufficient evi-
dence that, if believed, would establish a prima facie
case, not whether the trier of fact believes it. . . . For
the court to grant the motion [for judgment of dismissal
pursuant to Practice Book § 15-8], it must be of the
opinion that the plaintiff has failed to make out a prima
facie case. In testing the sufficiency of the evidence,
the court compares the evidence with the allegations
of the complaint. . . . In order to establish a prima
facie case, the proponent must submit evidence which,
if credited, is sufficient to establish the fact or facts
which it is adduced to prove. . . . [T]he evidence
offered by the plaintiff is to be taken as true and inter-
preted in the light most favorable to [the plaintiff], and
every reasonable inference is to be drawn in [the plain-
tiff’s] favor. . . . Whether the plaintiff has established
a prima facie case is a question of law, over which
our review is plenary.’’ (Citation omitted; emphasis in
original; footnote omitted; internal quotation marks
omitted.) Charter Oak Lending Group, LLC v. August,
127 Conn. App. 428, 434–35, 14 A.3d 449, cert. denied,
302 Conn. 901, 23 A.3d 1241 (2011).
Our thorough review of the transcript of the June 10,
2013 hearing indicates that Angela J. failed to introduce
any evidence that, if credited, would make out a prima
facie case that the cause for commitment no longer
exists. Angela J. did not present any new evidence
regarding the current state of her mental health issues,
as of June, 2013, or whether she was currently able to
provide care for Natalie without subjecting her to the
emotional, psychological, educational, physical and
medical neglect described in the social study. A princi-
pal claim Angela J. made at the June 10, 2013 hearing
was that she had never been told she had any mental
health issues. After a thorough review of the record,
we conclude the trial court properly granted the peti-
tioner’s motion to dismiss.
II
Angela J.’s claims regarding evidentiary rulings must
be viewed in the context of the proceedings. Evidence
that may perhaps have been relevant in a hearing on a
motion for a finding of neglect is not necessarily rele-
vant in a hearing on a motion to revoke commitment,
where the issue is not whether cause for commitment
once existed but rather, as discussed earlier in this
opinion, whether the cause previously found no longer
exists. Here, the court’s evidentiary rulings recognized
and relied upon this distinction. With this principle in
mind, we turn to the distinct evidentiary rulings that
on appeal are claimed to be erroneous.16
A
Angela J.’s first evidentiary claim is that the court
improperly took judicial notice of the social study. She
claims that the social study was inaccurate and that
the court was wrong to rely on it during the revocation
of commitment hearing because she was not present
at the December 22, 2011 hearing on the neglect petition
when the social study was admitted into evidence, and
therefore was unable to refute the assertions contained
in the social study.17 We disagree.
The following additional facts are relevant. At the
June 10, 2013 evidentiary hearing on the motion to
revoke commitment, the court took judicial notice of
several documents, including the social study. The court
provided Angela J. an opportunity to be heard before
taking judicial notice of the social study. The court then
explained its ruling. It stated that judicial notice of the
social study was proper because the social study was
admitted as a full exhibit during the neglect adjudication
hearing and, in large part, was the factual basis the
court relied on in adjudicating Natalie neglected and
in determining that commitment was in Natalie’s best
interest.
Section 2-1 of the Connecticut Code of Evidence pro-
vides in relevant part: ‘‘A court may, but is not required
to, take judicial notice of matters of fact . . . . A judi-
cially noticed fact must be one not subject to reasonable
dispute in that it is either (1) within the knowledge
of people generally in the ordinary course of human
experience, or (2) generally accepted as true and capa-
ble of ready and unquestionable demonstration.’’ In
determining whether a matter is the proper type for
judicial notice, courts have ‘‘attempted to draw a line
between matters susceptible of explanation or contra-
diction, of which notice should not be taken without
giving the affected party an opportunity to be heard18
. . . and matters of established fact, the accuracy of
which cannot be questioned, such as court files, which
may be judicially noticed without affording a hearing.’’
(Footnote added; internal quotation marks omitted.)
Wasson v. Wasson, 91 Conn. App. 149, 157, 881 A.2d
356, cert. denied, 276 Conn. 932, 890 A.2d 574 (2005).
‘‘A trial court’s determination as to whether to take
judicial notice is essentially an evidentiary ruling, sub-
ject to an abuse of discretion standard of review. . . .
In order to establish reversible error, the defendant
must prove both an abuse of discretion and a harm that
resulted from such abuse.’’ (Citation omitted; internal
quotation marks omitted.) Id., 157–58.19 In reviewing
a trial court’s evidentiary ruling, ‘‘the question is not
whether any one of us, had we been sitting as the trial
judge, would have exercised our discretion differently
. . . . Rather, our inquiry is limited to whether the trial
court’s ruling was arbitrary or unreasonable.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Cancel, 275 Conn. 1, 18, 878 A.2d 1103 (2005).
Child protection proceedings are civil matters. See
Practice Book § 32a-2 (a). In civil matters ‘‘[t]he entry
of a default constitutes an admission by the defendant
of the truth of the facts alleged in the complaint.’’
DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398,
400, 441 A.2d 838 (1982). In this case, when Angela J.
failed to appear and to contest the neglect petition and
the commitment of Natalie to the petitioner’s care, the
court was permitted to take the facts contained in the
pleadings and the social study to be true and to rely
on those facts in making its decision.20 See, e.g., Com-
missioner of Social Services v. Smith, 265 Conn. 723,
732–33, 830 A.2d 228 (2003) (respondent in child sup-
port proceeding who fails to respond to pleadings ‘‘is
deemed to have judicially admitted the underlying facts
of the support petition’’). As a result of Angela J.’s failure
to appear and to participate in the neglect proceedings,
the allegations in the neglect petition and the facts in
support of commitment contained in the social study
became the adjudicatory and dispositional facts in the
case. Accordingly, these facts formed the basis not only
for the court’s decision on the neglect petition and
commitment issue, but, once final, also formed the basis
for future decisions regarding whether to maintain or
revoke that commitment.21 See In re Allison G., 276
Conn. 146, 160, 883 A.2d 1226 (2005) (when deciding
whether to revoke commitment, court is required to
consider information upon which earlier adjudication
and commitment were based in order to determine
whether cause for commitment still exists). At the June
10, 2013 hearing, the court, therefore, acted well within
its discretion by taking judicial notice of the social study
and considering the facts alleged therein in order to
ascertain the previously determined cause for commit-
ment. Only then could the court determine whether the
cause for commitment continued to exist. We conclude
the court did not abuse its discretion in taking judicial
notice of the social study.
B
Angela J. also claims that the court abused its discre-
tion in taking judicial notice of her response to the
petitioner’s summary of facts substantiating neglect
rather than admitting it as a full exhibit. The petitioner
argues that the court properly excluded Angela J.’s
response to summary of facts as a full exhibit because
it was not relevant to the revocation of commitment
proceeding. We agree that the court did not abuse its
discretion in taking judicial notice of Angela J.’s
response to summary of facts and not admitting it as
a full exhibit.
First, it quite clearly was proper for the court to take
judicial notice of a prior pleading, at least for the fact
of what was filed. Whether information within the docu-
ment had substantive evidential value is a different
question. Relevant evidence is evidence that has ‘‘any
tendency to make the existence of any fact that is mate-
rial to the determination of the proceeding more proba-
ble or less probable than it would be without the
evidence.’’ (Emphasis added.) Conn. Code Evid. § 4-1.
Relevant evidence is admissible unless otherwise pro-
vided. Conn. Code Evid. § 4-2. The trial court has broad
discretion in ruling on the admissibility of evidence.
The trial court’s ruling on evidentiary matters will be
overturned only upon a showing of a clear abuse of the
court’s discretion and a showing that the ruling resulted
in ‘‘substantial prejudice or injustice.’’ (Internal quota-
tion marks omitted.) In re Angellica W., 49 Conn. App.
541, 550, 714 A.2d 1265 (1998).
Practice Book § 34a-14 provides that within thirty
days of the filing of a neglect petition, a parent, legal
guardian or child may file a response to the summary
of facts propounded by the petitioner in order to assert
that allegations contained in the summary of facts in
support of the petition are ‘‘irrelevant, immaterial, false
or otherwise improper.’’
The following additional facts are relevant. On August
4, 2011, the petitioner filed a neglect petition as well
as a summary of facts in support of the neglect petition.
On December 22, 2011, the court adjudicated Natalie
neglected. On August 15, 2012, more than one year after
the plea date on the neglect petition and eight months
after the finding of neglect, Angela J. submitted her
response to summary of facts. Angela J.’s response to
summary of facts broadly denied the allegations in the
neglect petition as well as the allegations in the petition-
er’s summary of facts substantiating neglect. At the June
10, 2013 hearing on the motion to revoke commitment,
Angela J. requested the court to take judicial notice of
her response to summary of facts.
We conclude that the court did not abuse its discre-
tion in declining to admit Angela J.’s response to sum-
mary of facts as a full exhibit. First, there is no clear
indication in the record that Angela J. sought to have
the document admitted as a full exhibit at the June 10,
2013 revocation of commitment hearing. Second, even
if Angela J.’s goal was admission of the document as a
full exhibit, the court did not abuse its discretion in
failing to admit it as a full exhibit because the document,
which addresses factual circumstances in 2011, was not
relevant to the issue to be decided in the revocation of
commitment hearing—that is, whether the circum-
stances as they were in June, 2013, warranted a finding
that the previously determined and finally established
cause for commitment no longer existed. We therefore
conclude that the court did not abuse its discretion in
taking judicial notice of Angela J.’s response to sum-
mary of facts.22
C
Angela J. finally claims that the trial court abused
its discretion by excluding a tape-recorded telephone
conversation between Angela J. and Natalie. We
disagree.
‘‘The trial court’s ruling on the admissibility of evi-
dence is entitled to great deference. . . . [T]he trial
court has broad discretion in ruling on the admissibility
. . . of evidence . . . [and its] ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest abuse
of discretion.’’ (Internal quotation marks omitted.) In
re Harlow P., 146 Conn. App. 664, 681, 78 A.3d 281(2013).
Relevant evidence is evidence that has ‘‘any tendency
to make the existence of any fact that is material to
the determination of the proceeding more probable or
less probable than it would be without the evidence.’’
(Emphasis added.) Conn. Code Evid. § 4-1; see also In
re Angellica W., supra, 49 Conn. App. 549 (‘‘Relevant
evidence is evidence that has a logical tendency to aid
the trier of fact in the determination of an issue. . . .
All that is required is that the evidence tend to support
a relevant fact even to a slight degree, so long as it is not
prejudicial or merely cumulative.’’ [Internal quotation
marks omitted.]). Relevant evidence is generally admis-
sible. Conn. Code Evid. § 4-2. ‘‘The proffering party
bears the burden of establishing the relevance of the
offered testimony. Unless a proper foundation is estab-
lished, the evidence is irrelevant.’’ (Internal quotation
marks omitted.) State v. Reynolds, 264 Conn. 1, 59, 836
A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct.
1614, 158 L. Ed. 2d 254 (2004).
One means of suggesting relevance is an offer of
proof. Courts are permitted to base their decisions
regarding the relevance and admissibility of evidence
on the offer of proof and argument made by the propo-
nent of the evidence. ‘‘An offer of proof, properly pre-
sented, serves three purposes. First, it should inform
the court of the legal theory under which the offered
evidence is admissible. Second, it should inform the
trial judge of the specific nature of the offered evidence
so the court can judge its admissibility. Third, it thereby
creates a record adequate for appellate review.’’ (Inter-
nal quotation marks omitted.) State v. Conrod, 198
Conn. 592, 597, 504 A.2d 494 (1986).
The following additional facts are relevant. At the
June 10, 2013 evidentiary hearing on her motion to
revoke commitment, Angela J. attempted to introduce
a tape recording of a telephone conversation between
her and Natalie. When the court asked Angela J. to
provide a foundation, she insisted that she should be
able to play the tape recording without further explana-
tion. The petitioner, through counsel, requested an offer
of proof as to the nature of the recording, when it was
made, and to whom and to what it referred, and an
explanation of how it was relevant to the revocation
of commitment proceeding. In response, Angela J.
explained that it was a tape recording of a telephone
conversation between herself and Natalie on May 14,
2012, during which Natalie told her that her attorney
had her sign papers without reading them, that she was
repeatedly asked by her attorney, school officials, the
petitioner, workers, and others whether she ever ran
away from home and that she told them she had not
run away, and that when Angela J. appeared in the
street outside her residential placement, staff told her
to hide.23
Subsequently, Natalie’s counsel objected, arguing
that the offer of proof was insufficient, that the tape
recording of the telephone conversation was irrelevant
to the revocation of commitment hearing, and that it
was inadmissible hearsay. The petitioner also objected
on the same grounds, maintaining that there was no
representation that the material contained in the tape-
recorded conversation was relevant to the issue before
the court at the revocation hearing. Angela J. responded
to the relevancy objection by stating that the tape
recording tended to show that Natalie had been ‘‘brain-
washed’’ into believing that she was not safe with her
parents. She then began to testify about facts and allega-
tions outside the contents of the tape recording.24 When
the court asked Angela J. to explain how the contents
of the tape recording were relevant to the issue of
whether cause for commitment still existed, Angela J.
responded by stating that the social workers were
untruthful and reiterated her claim that the factual infor-
mation introduced at the December 22, 2011 neglect
adjudication hearing was not reliable and was not truth-
ful. The court sustained the objection on the grounds
that the offer of proof did not address how the tape
recording was relevant to Angela J.’s burden of estab-
lishing that the cause for commitment no longer existed.
Angela J. claims the court abused its discretion in
excluding the tape recording. We disagree.
After a thorough review of the record, we conclude
that there is no indication that the tape recording con-
tained evidence relevant to the issue before the court
at the revocation hearing. The court, therefore, did not
abuse its discretion in excluding the tape recording of
the alleged May 14, 2012 telephone conversation
between Angela J. and Natalie. Accordingly, we do not
conclude that the court erred in dismissing Angela J.’s
motion to revoke commitment.
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.
** January 29, 2014, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The respondent father, Christopher J., is not a party to this appeal.
2
According to Livingston’s affidavit, on August 1, 2011, Natalie presented
at the emergency department because of Angela J.’s persistent concerns
that Natalie had been poisoned. Medical tests revealed that Natalie had not
been poisoned; however, she was admitted for further evaluation. Angela
J. and her husband Christopher J., Natalie’s father, attempted to leave with
Natalie against medical advice. Livingston attempted to speak with Natalie
privately, but Angela J. refused to allow Livingston to speak with Natalie
without her being present. Livingston also reported that Angela J. refused
to allow her to order a mental health assessment for Natalie.
On August 3, 2011, Livingston was able to speak with Natalie, separate
from Angela J., in the presence of an advanced practice registered nurse.
Natalie reported to Livingston that Angela J. tells her that ‘‘people are trying
to poison them, that schools are putting [Natalie] in the wrong classes, and
that teachers are telling the kids in [Natalie’s] school to say negative things
to her. Natalie report[ed] that sometimes she believes that people are watch-
ing or following her and it makes her scared and nervous. . . . Sometimes
she does not believe the things [Angela J.] says and is bothered by [Angela
J.’s] persistent discussion of the games.’’ Natalie also reported that Angela
J. ‘‘will not separate from her except for school and occasionally to leave
her with [maternal grandmother].’’ Natalie also told Livingston that she did
not participate in any extracurricular activities, had no friends, and no
regular contact with anyone aside from her parents. A psychological evalua-
tion on August 3, 2011, revealed that Natalie suffered from social anxiety
disorder and pervasive developmental disorder, and that she struggled to
separate Angela J.’s delusions from reality.
3
The affidavit seeking out-of-home placement of Natalie stated: ‘‘[C]ontin-
uation in the home is contrary to the welfare of the child because . . .
[Angela J.’s] mental health impacts her ability to care for [Natalie]. [Christo-
pher J.] has failed to protect [Natalie] from [Angela J.’s] mental health
problems. [Natalie] has been emotionally and physically impacted by parent’s
actions and statements.’’ The affidavit also stated that the department had
made reasonable efforts to keep Natalie in the home prior to seeking an
out-of-home placement, including offering safety planning and psychological
evaluation services to both parents.
4
The summary of facts substantiating neglect alleged, in part: (1) ‘‘[f]or
at least the past two years, [Angela J.] has had paranoid beliefs that have
included that the family is being followed and harassed, primarily by [Nata-
lie’s] school systems’’; (2) ‘‘[Christopher J.] has failed to protect [Natalie]
from [Angela J.’s] paranoid actions and statements in that he continues to
allow [Natalie] to be exposed to [Angela J. and subject to Angela J.’s actions
and statements]’’; (3) ‘‘in the past two years, the family has moved to three
different states in part due to [Angela J.’s] beliefs [that] they were being
targeted and potentially poisoned . . . by various school systems’’; (4) ‘‘[a]s
a result of the parents’ actions and statements, [Natalie] has been subjected
to unnecessary medical examinations, and undue stress and anxiety about
her participation in school, and social activities’’; and (5) ‘‘[Angela J.’s]
mental health impacts her ability to appropriately care for [Natalie].’’
5
Angela J. did not appear at the court hearings regarding the order for
temporary custody and the neglect petition scheduled during August and
September of 2011. The trial court found proper service upon Angela J. and
that she had notice of the results of each of those hearings.
6
On December 22, 2012, a default was entered against Christopher J. for
failure to appear.
7
Angela J. and Christopher J. failed to comply with the petitioner’s
requests throughout the investigation by refusing to meet with department
workers, refusing visitation time with Natalie, and refusing to participate
in the social study.
8
Angela J. refused to participate in the social study. Department social
workers obtained information about Angela J. from her mother, Jacqueline
S., who reported that Angela J.’s mental health issues began when she was
terminated from her job and continued and remained untreated.
9
Pursuant to Practice Book § 35a-14 (f), the petitioner is required to file
a permanency plan with the court every twelve months while a child is in
foster care. Under Practice Book § 35a-14 (c), a person who objects to the
plan that the petitioner has presented has thirty days in which to file a
written objection. If a written objection is filed within the thirty day period,
the court must schedule an evidentiary hearing to consider the plan. If no
written objection is filed within the thirty day time period, the court may
consider and approve or disapprove the plan on the basis of the social study
and the arguments of the parties on the date of the scheduled hearing on
the motion for review.
10
Practice Book § 35a-16 requires that ‘‘any modification motion to return
the child to the custody of the parent without protective supervision shall
be treated as a motion for revocation of commitment.’’
11
Pursuant to General Statutes § 46b-129 (m), a court ruling on a motion
for revocation of commitment must consider two issues: (1) whether cause
for commitment no longer exists; and (2) whether revocation of commitment
is in the best interests of the child.
12
The court explained: ‘‘As I said to you last week, this does not provide
a party a chance to have a retrial on the issues that led to commitment.
There was a judicial finding that the child was neglected. There was a judicial
decision to commit the child to the [petitioner]. There was an opportunity to
contest that—the petition. And the petition was not contested and defaults
were entered.
‘‘A default is regarded as allowing the petition for the pleading to be
presumed as true and the court treated it that way and was based on the
neglect petition and the addendum that was incorporated into the original
neglect petition was thereby presumed to be true.
‘‘And you can’t—today you can’t offer evidence or try to challenge that
the facts that the judge found back when the child was committed weren’t
then true. What your—the burden of proof you face today is to show that
whatever the circumstances were when the child was found neglected and
committed, there are difference circumstances today such that today there’s
no longer a cause for commitment.’’
13
The court explained to Angela J. that ‘‘it’s too late to challenge whether
[the facts in the neglect petition, taken to be true because there was a
default judgment] were true back in 2011. All you can try to do now is show
that whatever the circumstances were in 2011, those circumstances no
longer exist.’’
That decision, of course, had become final and the appeal period had
expired.
14
Angela J.’s reliance on this nonbinding Superior Court case is unavailing.
In Suprenant v. Commissioner of Welfare, supra, 21 Conn. Supp. 154, the
court found there was no evidence presented at trial that the parents’ issues
were affecting the child. Whereas, in the present case, at trial, there was
ample evidence in the pleadings and social study of the negative effects
that Angela J.’s mental health issues had on Natalie.
15
The petitioner’s appellate brief states: ‘‘Angela J. indicated in her [n]otice
of [a]ppeal that she was appealing the June 20, 2013 denial of her [m]otion
for [r]econsideration . . . . However, her preliminary statement of issues
and brief claim[ed] errors in the court’s evidentiary rulings and its decision
to grant the [m]otion to [d]ismiss . . . .’’ This procedural information
appears to be provided for the purpose of clarification only and does not
affect our ability to consider Angela J.’s appeal.
16
Ordinarily we would see no reason to consider other claims when we
have found that there was insufficient evidence to survive a motion to
dismiss. In this case, however, because the disposition of both the sufficiency
issue and of the evidentiary issues are interrelated and governed by the
same controlling principle, we consider it useful to discuss all issues.
17
The petitioner argues that the court properly took judicial notice of the
social study because Angela J. was given an opportunity to be heard at the
revocation hearing and the social study contained information from which
the court could assess whether or not the cause for commitment still existed.
We agree that the court properly took judicial notice of the social study.
18
See also In re Jeisean M., 270 Conn. 382, 402, 852 A.2d 643 (2004) (so
long as parties are offered opportunity to be heard, court may notice any
fact concerning parties and events of case appropriate for judicial notice).
19
See also Misthopoulos v. Misthopoulos, 297 Conn. 358, 383, 999 A.2d
721 (2010) (‘‘[b]efore a party is entitled to a new trial because of an erroneous
evidentiary ruling, he or she has the burden of demonstrating that the error
was harmful’’ [internal quotation marks omitted]).
20
Practice Book § 35a-9 provides: ‘‘The judicial authority may admit into
evidence any testimony relevant and material to the issue of the disposition,
including events occurring through the close of the evidentiary hearing, but
no disposition may be made by the judicial authority until any mandated
social study has been submitted to the judicial authority. Said study shall
be marked as an exhibit subject to the right of any party to be heard on a
motion in limine requesting redactions and to require that the author, if
available, appear for cross-examination.’’ (Emphasis added.)
21
See Practice Book § 35a-14A (‘‘[w]hether to revoke the commitment is
a dispositional question, based on the prior adjudication, and the judicial
authority shall determine whether it is in the best interest of the child to
maintain or revoke upon a fair preponderance of the evidence’’). ‘‘The court,
in determining whether cause for commitment no longer exists, would obvi-
ously look to the original cause for commitment to see whether the conduct
or circumstances that resulted in commitment continue to exist. In re Cesar
G., 56 Conn. App. 289, 294, 742 A.2d 428 (2000). Accordingly, the trial court
considers not only the adjudication, but also the attendant facts. See id.,at 294–95 (concluding that trial court, when deciding whether to revoke
commitment, properly considered facts set forth in trial court’s memoran-
dum of decision ordering original commitment of child).’’ (Internal quotation
marks omitted.) In re Allison G., 276 Conn. 146, 160, 883 A.2d 1226 (2005).
22
Additionally, by taking judicial notice of Angela J.’s response to summary
of facts, the court was able to consider the document’s contents. Nothing
additional would have been accomplished if the document had been admitted
as a full exhibit.
23
The following colloquy occurred among counsel, the court, and Angela J.
‘‘[The Petitioner’s Counsel]: Your Honor, I object to—I would ask for an
offer of proof . . . [and] how it is relevant to this proceeding.
‘‘[The Court]: All right. Would you state that, please, [Angela J.]
***
‘‘[Angela J.]: It’s a recording of me and my daughter, [Natalie] . . . .
‘‘[Angela J.]: . . . . And the only reason why I even made this recording
. . . was because she was just telling me too many things that got me
concerned. She is heard on this recording multiple times stating that her
lawyer . . . had her sign paperwork and told her not to bother reading
what she signed. . . . [She said] that the Connecticut [department] workers
. . . her lawyer . . . and Winifred House employees kept asking her repeat-
edly if she ever ran away from me when her and I lived . . . [in] Florida.
She’s heard repeatedly on this recording stating no, no, I told them . . . I
never ran way. . . .
‘‘She also states on this recording that her lawyer . . . her social worker
. . . they all told her that she was going—flying to . . . Florida just for a
visit. They all told her it was just for a visit, never told her it was going to
be permanent . . . . She says that [her social worker] finally told her five
minutes before the plane lands in . . . Florida that it’s not just a visit, she’s
going to be there permanently [living with her grandmother.] . . .
‘‘[Natalie’s Counsel]: Your Honor, at this point I’m going to object.
***
‘‘[Angela J.]: She’s also on this recording talking about the time when I
showed up at the Winifred House. . . .
‘‘I showed up there twice and Natalie is talking on this recording telling
me how people at Winifred House were telling her to hide. They told her
to hide in the basement. They told her to hide again the second time I
showed up . . . . They locked all the doors and windows on the first floor
and she—and she’s heard just—I say well, why—why do you think they did
that? I don’t understand. And she says, well, they thought you were going
to take a picture of me.
‘‘That’s her thought process because Natalie is not thinking I’m like going
to hurt her in any way or—she knows that I’m not a neglectful parent. She
in her mind, she processes my question and it can be heard on [the tape
recording] that she thinks that they locked the windows and doors and told
her to hide because I might take a picture of her. And that’s the thought
processing going on with [Natalie]. It’s not a thought process . . . that
states she was in fear . . . of anything.’’
24
The following colloquy occurred among counsel, the court, and Angela J.
‘‘[The Court]: Okay. Now there’s an objection from the child’s attorney.
‘‘[Natalie’s Counsel]: Well, Your Honor, it doesn’t appear to be relevant
to this proceeding. The court had indicated the purpose of this hearing is
for a motion to revoke commitment. And pursuant to the facts as alleged
in the petition for an adjudication of neglect, there is nothing there regarding
Natalie, an assertion that Natalie ran away as a basis for the neglect adjudica-
tion. I don’t think it’s relevant to this proceeding.
‘‘Additionally, I would object to it being hearsay as an out-of-court state-
ment offered . . . to prove the truth of the matter asserted.
***
‘‘[The Petitioner’s Counsel]: The state would object, Your Honor, for the
same reasons. There’s nothing in [Angela J.’s] offer of proof as to what is
on the recording that would be beneficial to the court that speaks to . . .
that speaks to her burden that the cause for commitment no longer exists.
‘‘[The Court]: So what’s your response to the objection?
‘‘[Angela J.]: I have definitely responses. A lot of times when I speak to
Natalie on the telephone she keeps saying things like Winifred House work-
ers said I’m safe now. . . . She recently told me . . . my lawyer said that
it’s not a good home environment for me to live in. So why am I bringing
all this up because I feel that our child has been brainwashed into thinking
she’s not safe with my husband and I. . . . And this goes even further. My
mother, Jacqueline [S.] . . . started to put fear in our daughter’s head . . . .
‘‘[The Petitioner’s Counsel]: Your Honor, I would object that this response
is not responsive—
***
‘‘[The Court]: We’re just talking that this particular tape, why do you
maintain this particular tape is relevant here and contains information that’s
relevant to the issue about whether the cause for commitment no longer
exists?
‘‘[Angela J.]: Because anything . . . [department] social worker[s] would
have sworn to in court that day was not the truth, Your Honor. . . . And
I have proof that other social workers are fudging the facts . . . .
‘‘[The Petitioner’s Counsel]: Your Honor, this does not go to the . . . .
‘‘[Angela J.]: And . . . exactly what he fudged was put into the case plan
and it’s those case plans that [the department] . . . rely on . . . [and] that
help them write up their permanency plans. And so it does have a direct
impact on everything. . . .
‘‘[The Petitioner’s Counsel]: Your Honor, I would object to this . . . .
***
‘‘[Angela J.]: . . . [And] anything that was introduced into court by
[department] employees at any given time, namely December 22, 2011, can’t
be possibly relied upon as . . . being the truth, Your Honor.
‘‘[The Court]: All right. I’m going to read the exhibit that was introduced
at the commitment hearing. . . . Okay. The objection is sustained.
‘‘[The Petitioner’s Counsel]: I would ask that the record be stricken as
to that.
‘‘[Angela J.]: I’m sorry?
‘‘[The Court]: No. That was her argument of why—denied. [T]he objection
[to the tape-recorded phone conversation] is sustained because the causes
for commitment as evidenced by the neglect petition and the social study
were the mother’s mental health issues, the father’s failure to protect the
child from the mother’s mental health issues and the impact of both of these
on the child.’’