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Jordan M. v. Darric M.

Court of Appeals of Connecticut

September 8, 2016

JORDAN M.
v.
DARRIC M.[*]

          Argued May 24, 2016

         Appeal from the Superior Court, judicial district of New Haven, Emons, J.

          James Hardy, for the appellant (defendant).

          Beach, Keller and Harper, Js.

          OPINION

          BEACH, J.

         The defendant, Darric M., appeals from the judgment of the trial court granting the application for a restraining order filed on behalf of the plaintiff, Jordan M., by Eleanor M., as next friend. The defendant claims that (1) there was insufficient evidence to support the court's imposition of a civil restraining order pursuant to General Statutes § 46b-15, and (2) the court improperly used the mechanism of a restraining order to grant custody of Jordan to Eleanor M. We agree that there was no evidence to support the restraining order and, accordingly, reverse the judgment of the trial court.

         The record in this case is confusing at best and certain portions of the file appear to have been entered under incorrect docket numbers. We note as well that only the defendant has filed a brief. It appears that the two relevant Superior Court docket numbers are from the judicial district of New Haven: FA-15-4066397, which is a custody case; and FA-15-4066531, which is a restraining order case. The relevant facts, so far as they can be discerned from the record, are as follows. The defendant and Heather S. are the parents of Jordan, who was born in2013. The Commissioner of the Department of Children and Families filed a neglect petition against Heather S. In May, 2015, Heather S. purportedly executed an agreement in which she agreed to give temporary custody of Jordan to Eleanor M., the defendant's aunt. In August, 2015, Eleanor M. filed in Probate Court a petition for temporary custody of Jordan and for removal of the defendant and Heather S. as guardians.

         On August 7, 2015, the defendant brought an action in Superior Court against Heather S., seeking sole custody of Jordan (custody case). The defendant filed an application for an emergency ex parte order of custody. The court, Goodrow, J., issued an emergency ex parte order granting the defendant temporary custody on August 7, 2015.

         Following that order, a hearing was held on August 21, 2015, before the court, Emons, J., at which the defendant was self-represented.[1] On that date, the court granted Eleanor M., also self-represented, permission to intervene in the case. The court found that the defendant had not established that custody should be transferred from Eleanor M. to him, and ordered that Jordan remain in the temporary custody of Eleanor M. until the resolution of the probate case.[2] The court permitted the defendant visitation with Jordan during the day, with no overnight visitation.

         On the night of August 21, 2015, Heather S., the defendant, and Noel R., the defendant's brother, went with police officers to the home of Eleanor M. Eleanor M. did not have a copy of the August 21, 2015 court order, which had been entered that same day, and the police required her to return Jordan to the custody of his parents. In reaction, Eleanor M. filed in the custody case, on August 24, 2015, an application seeking an emergency ex parte order of custody. The judgment file in the custody case that was signed by the court, Emons, J., on March 4, 2016, reflects that on August 24, 2015, the court found that an immediate and present risk of physical danger or psychological harm to Jordan existed and that it was in the best interest of Jordan to award temporary custody to Eleanor M. The court further terminated all visitation by the defendant. The judgment file further states that ‘‘[t]hese orders were made permanent on October 27, 2015.''

         Also on August 24, 2015, Eleanor M., pursuant to § 46b-15 and as next friend of Jordan, filed applications for civil restraining orders against the defendant (restraining order case), Heather S. and Noel R., all of which were granted ex parte.[3] On September 4, 2015, a hearing was held addressing the August restraining orders; the court continued the matter to September 15, 2015, while the ex parte temporary restraining orders remained intact. Following the September 15, 2015 hearing, the court held that Eleanor M. had sustained her burden regarding the § 46b-15 restraining orders against Heather S., Noel R., and the defendant, and ordered them to be in effect for one year. The defendant filed a motion for articulation and a motion for reconsideration, both of which were denied by the court. This appeal followed. We stress that the only appeal is from the restraining order case. There is no appeal from the custody case.

         I

         The defendant first claims that the evidence was insufficient to support a finding that he presented ‘‘a continuous threat of present physical pain or physical injury, '' as required by § 46b-15.[4] We agree.

         ‘‘[W]e will not disturb a trial court's orders unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion . . . we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. . . . 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. . . . Our deferential standard of review, however, does not extend to the court's interpretation of ...


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