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In re David B.

Court of Appeals of Connecticut

July 22, 2016

IN RE DAVID B.[*]

          Argued May 9, 2016

         Appeal from Superior Court, judicial district of Fairfield, Juvenile Matters at Bridgeport, Maronich, J.

          David E. Schneider, Jr., for the appellant (respondent mother).

          Joshua Michtom, assistant public defender, for the appellee (substitute petitioner).

          Isidro Rueda, for the minor child.

          Lavine, Prescott and Bear, Js.

          OPINION

          PRESCOTT, J.

         The sole issue raised in the present appeal is whether the trial court, in adjudicating a petition to terminate parental rights originating in Probate Court, had the authority, following the death of the original petitioner and legal guardian of the minor child during the pendency of the proceedings, to grant a motion to substitute the child’s newly appointed legal guardian as the petitioner in place of the decedent. We conclude that, under the unique set of circumstances presented here, such a substitution was both legally permissible and appropriate given that the newly appointed legal guardian is authorized to bring the termination action herself.

         The respondent mother, Carmen C., appeals from the judgment of the trial court rendered following a trial de novo on an amended petition to terminate her parental rights as to her son, David B.[1] The respondent claims on appeal that the court’s decision to terminate her parental rights should be reversed because, following the death of the original petitioner, Josefa G., who was David’s maternal grandmother and his legal guardian, the court improperly granted a motion to substitute in Josefa’s mother, Emma G., who, following Josefa’s death, was duly appointed by the Probate Court as David’s new legal guardian and as the executor of Josefa’s estate.

         The respondent makes two arguments in support of her claim on appeal. First, she argues that General Statutes § 52-599, [2] which, with limited exceptions, provides for the survival of an action or proceeding following the death of a party and authorizes the substitution of the executor or administrator of that party’s estate, is inapplicable in proceedings on a petition to terminate parental rights. Accordingly, she argues that the court committed reversible error by allowing Emma’s substitution in her capacity as the administrator of Josefa’s estate.

         Second, she asserts that motions to substitute parties are not authorized in juvenile court proceedings, citing Practice Book § 34a-1 (b), [3] and, therefore, the trial court should have treated the filing of the motion to substitute as ‘‘a nullity, ’’ and the case should have proceeded ‘‘as if the motion had never been filed.’’ To be clear, the respondent has raised no challenge on appeal either to the factual or legal merits of the court’s decision to terminate her parental rights other than the court’s decision on the motion to substitute. We conclude, contrary to the respondent’s arguments, that the court had ample authority to permit the matter to move forward and grant the motion to substitute, and, accordingly, we affirm the judgment of the court terminating the respondent’s parental rights.

         The record discloses the following relevant facts and procedural history, which largely are undisputed. David was born in March, 2003. In September, 2003, the Department of Children and Families (department) obtained an ex parte order granting it temporary custody of David due to the respondent’s ongoing mental health issues and concerns about domestic violence and substance abuse by David’s father. David subsequently was adjudicated uncared for, committed to the care of the Commissioner of Children and Families, and placed with his grandmother, Josefa, who also had temporary custody of David’s older sibling, Emmanuel.[4] David remained with Josefa until the commitment was revoked in 2005, at which time he was returned to the care of the respondent.

         In 2008, in response to a call from David’s grandfather, the police found David living with the respondent in horrendous conditions, in poor health, and malnourished.[5] The respondent consented to David being returned to Josefa’s custody. At that time, Josefa’s mother, Emma, also was living with Josefa.[6] Shortly after David’s removal from her care, the respondent and David’s father submitted an application to the Probate Court for the district of Bridgeport seeking to remove themselves voluntarily as David’s guardians and to appoint Josefa as David’s sole legal guardian. Although David’s parents later had a change of heart with regard to relinquishing guardianship of David, after extensive and contentious litigation, on June 21, 2010, Josefa was appointed as David’s sole legal guardian. Litigation between Josefa and David’s parents nevertheless continued regarding parental visitation. The visitation rights of David’s father eventually were terminated in May, 2011, and the respondent’s visitation rights also were severely restricted.[7]

         On April 12, 2013, Josefa, as David’s sole legal guardian, filed a petition with the Probate Court to terminate the parental rights of the respondent and David’s father on the ground that David previously had been adjudicated uncared for and his parents had failed to achieve a sufficient degree of personal rehabilitation to encourage a belief that, within a reasonable period of time, they could assume a responsible position in David’s life. See General Statutes § 45a-717 (g) (2) (D) (i). In a statement attached to the petition, Josefa alleged that David’s parents had failed to support or take care of him, that they could not keep him safe, and that Josefa could no longer tolerate the parents’ threats and arguments.

         The Probate Court, Ganim, J., ordered an investigation by the department and received a report on March 12, 2014, in which the department recommended that termination of his parents’ parental rights was in David’s best interest. The court held a hearing on April 28, 2014, and, on October 20, 2014, issued a decree terminating both parents’ parental rights on the grounds of failure to rehabilitate and a lack of any parent-child relationship as set forth in § 45a-717 (g) (2) (C) and (D) (i). The father filed an appeal from the decree terminating his parental rights with the Superior Court on November 5, 2014. The respondent filed her own appeal on November 8, 2014. The appeals apparently were consolidated.

         On December 4, 2014, during the pendency of the probate appeal, Josefa died. On December 15, 2014, the Probate Court appointed Emma as David’s new legal guardian. It also appointed Emma as the administrator of Josefa’s estate on December 22, 2014.

         On February 23, 2015, the respondent and the father each filed a motion asking the court to ‘‘nonsuit’’ Josefa, in which they argued that a reply to their probate appeal had been due on December 11, 2014, but Josefa had passed away and her estate had not intervened. On March 17, 2015, Emma filed a handwritten motion asking the court to substitute her in for Josefa because she was now David’s sole legal guardian. She did not assert in her motion that she was seeking substitution as the administrator of Josefa’s estate. The respondent and David’s father each filed objections to the motion for substitution. They argued that Emma is ‘‘only the legal guardian to [David]’’ and that she ‘‘has no legal authority to substitute in place of the decedent [Josefa].’’

         On April 14, 2015, the trial court, Maronich, J., conducted a hearing on the motion to substitute. The arguments began in the morning with a discussion of whether the record reflected if Emma had been appointed as the administrator of Josefa’s estate, as David’s legal guardian, or both, and whether the parties were prepared to stipulate to any of those facts. The respondent’s attorney argued that the respondent’s objection to substitution was not based on whether Emma had been appointed as David’s guardian, which he claimed was irrelevant to whether the court should permit substitution, but on whether ‘‘she has the authority to step into the shoes of the estate.’’ Thus, the respondent appeared to take the position that the court only had the authority to grant substitution to a duly appointed representative for Josefa’s estate. At no time during the argument on the motion to substitute did either the respondent’s attorney or the attorney for the father argue or suggest that further action on the petition was no longer possible due to Josefa’s death, or that the court lacked authority to substitute in a new party.

         The court, contrary to the respondent’s position, indicated that it believed it was important to establish whether Emma had been appointed as David’s legal guardian. The court admonished the attorneys, indicating that it had expected them to come to court ‘‘prepared with all proper documentation or in the alternative, to be able to at least agree on a basic set of facts.’’ The court took a recess after instructing the lawyers to ‘‘get something definitive’’ from the Probate Court.

         When the matter resumed in the afternoon, the court agreed to take judicial notice of the entire Probate Court file, which the court noted included a decree dated December 15, 2014, appointing Emma as David’s guardian, and a December 22, 2014 decree appointing her as the administrator of Josefa’s estate. The court asked the respondent’s attorney if the court properly understood his argument to be that Emma ‘‘needs something more than just simple appointment as guardian’’ to support substitution. The respondent’s attorney first seemed to acknowledge that his argument against the motion to substitute likely had been rendered moot by the court’s decision to take judicial notice of the decree appointing Emma as administrator for Josefa’s estate. He then responded that his understanding of the case law was that Emma could be substituted in for Josefa only on the basis of her position as administrator for the estate, and that her position as legal guardian was irrelevant. Counsel for the father agreed with that analysis.

         When counsel for the minor child asked what case law the respondent’s attorney was relying on in support of his argument, he indicated Burton v. Browd, 258 Conn. 566, 783 A.2d 457 (2001), in which our Supreme Court discusses § 52-599, Connecticut’s so-called right of survival statute, and In re Lisa N., Superior Court, judicial district of New Haven (July 28, 1992) (7 Conn.L.Rptr. 175), in which the court, Downey, J., held that proceedings on a petition to terminate parental rights may survive the death of the petitioner provided that an executor or administrator is substituted in for the decedent in accordance with § 52-599.

         Because counsel for the respondent was advancing the position that Judge Downey’s decision was legally correct, and the trial court already had taken judicial notice that Emma had been appointed as the administrator for Josefa’s estate on December 22, 2014, the court asked respondent’s counsel if he was willing to concede that Emma could be substituted into the present action in place of Josefa. Counsel was not willing to make such a concession, however, explaining that he was ‘‘trying to preserve any appellate issues if there are any appellate issues.’’

         After hearing from all the parties, the court issued an oral decision denying the motions for nonsuit, granting the motion to substitute, and overruling the objections of the respondent and David’s father. The court reasoned that it was unnecessary for it to rely upon Judge Downey’s decision in In re Lisa N. or to discuss whether it agreed with that court’s analysis of § 52-599. According to the court, Emma had been appointed as David’s legal guardian and, as such, was a proper party to prosecute a petition to terminate parental rights in accordance with General Statutes § 45a-715. The court identified no other legal impediments to its exercising its discretion and allowing the substitution.

         Emma filed a motion on September 22, 2015, seeking permission to amend the termination petition to include as an additional ground for termination that there was no ongoing parent-child relationship between David and his parents and to allow further time to establish such a relationship would be detrimental to David’s best interests.[8] See General Statutes § 45a-717 (g) (2) (C). The court granted the motion over the objections of the parents. The court then conducted a trial de novo on the amended petition over the course of three days, beginning on October 21, 2015.[9]

         Following trial, the court issued a written memorandum of decision on November 9, 2015, in which it granted the amended petition to terminate parental rights, concluding that the petitioner had proven by clear and convincing evidence both grounds alleged in the petition. Specifically, on the basis of its review of the evidence, the court found that neither the respondent nor David’s father was fit to parent their son or even to engage in visitation, and there was no prospect that either would be able to do so at any time in the foreseeable future. The court further found that no positive emotional aspect of a parent-child relationship existed between David and either of his parents, and there was no reasonable prospect that ...


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