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In re Natalie S.

Supreme Court of Connecticut

June 6, 2017

IN RE NATALIE S.[*]

          Argued January 24, 2017

          Michael S. Taylor, assigned counsel, with whom were Marina L. Green, assigned counsel, and, on the brief, Emily Graner Sexton, assigned counsel, for the appellant (respondent mother).

          Joshua Michtom, assistant public defender, for the appellee (respondent father).

          Joseph A. Geremia, Jr., for the minor child.

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Vertefeuille, Js.

          OPINION

          EVELEIGH, J.

         The respondent mother in the underlying case, Heather S. (mother), appeals from the judgment of the trial court denying her motion for visitation with the minor child, Natalie S. On appeal to this court, the mother asserts that the trial court incorrectly determined that North Carolina was the appropriate forum to adjudicate the issues raised in her motion for visitation. The respondent father, Matthew B. (father), asserts that the trial court properly denied the mother's motion for visitation on the ground that North Carolina is the more appropriate forum to decide the issues raised therein. We affirm the judgment of the trial court.

         The underlying facts and procedural history are set forth in In re Natalie S., 325 Conn., A.3d (2017). The following additional facts and procedural history are relevant to the present appeal. While the mother's appeal from the judgment of the Appellate Court regarding the neglect proceeding was pending before this court, the mother filed a motion to modify the trial court's orders of visitation with the trial court.[1]In that motion, the mother requested that the trial court modify its orders of visitation to include specific days for telephone, video, and in person contact with the minor child. Specifically, the mother alleged in her motion that she was living with the minor child's maternal grandmother, had family supports available to her, and that the father was imposing unreasonable and arbitrary limitations on her ability to have visitation with the minor child. The mother further alleged that a modification of visitation was in the best interests of the minor child.

         The father objected to the motion, asserting that: (1) the trial court matter was concluded when the trial court transferred custody and guardianship of the minor child to the father; (2) upon information and belief, the state of North Carolina had exercised jurisdiction in this matter; (3) both the father and the minor child reside in North Carolina; and (4) the mother could file a motion for modification of visitation in a court in North Carolina.

         The trial court heard oral argument on the motion. At that time, counsel for the mother asserted that the trial court could exercise jurisdiction over the motion under the Uniform Child Custody Jurisdiction and Enforcement Act (act), General Statutes § 46b-115 et seq. Nevertheless, counsel for the mother also recognized that the trial court could relinquish jurisdiction over the motion under General Statutes § 46b-115q[2] on the ground of inconvenient forum. Counsel for the mother asserted, however, that the court should exercise jurisdiction over the motion and noted, inter alia, that the court could resolve the issue of visitation expeditiously because a trial was already scheduled and the court was familiar with the facts and issues in the matter. Counsel for the mother also represented that both the father and the minor child lived in North Carolina and that the mother did not have sufficient resources to travel from Massachusetts to North Carolina for litigation.

         After the oral argument on the motion, the trial court ruled as follows: ‘‘This court is of the opinion that a coordinate court in North Carolina is just as capable, given all of the evidence available, of deciding expedi-tiously the nature and extent of the contact that [the mother] should have with [the minor child]. . . . [The] motion for this court to issue more specific orders of visitation, when there have been no orders of visitation entered by this court, is denied for the reasons outlined on the record.''[3] The mother appealed from the judgment of the trial court to the Appellate Court. After hearing oral argument, the Appellate Court recommended transfer of the mother's appeal to this court pursuant to Practice Book § 65-2.[4] We issued an order approving the transfer on December 15, 2016, and, thereafter, heard oral argument on the appeal.[5]

         I

         The mother first claims that the trial court had exclusive and continuing jurisdiction over her motion for visitation under the act. Specifically, the mother asserts that because the trial court had jurisdiction over the underlying neglect petition, which alleged that the minor child was being denied proper care and attention and was living under conditions or circumstances injurious to her well-being, its jurisdiction continued and covered the subsequent motion for visitation filed by the mother. The mother further asserts that, because Connecticut courts are actively exercising jurisdiction over the appeal from the neglect petition and the current appeal, North Carolina cannot exercise jurisdiction over the mother's motion for visitation. We disagree.

         We begin with the standard of review applicable to the mother's claim. ‘‘We have long held that because [a] determination regarding atrial court's subject matter jurisdiction is a question of law, our review is plenary.'' (Internal quotation marks omitted.) State v. Tabone, 301 Conn. 708, 713-14, 23 A.3d 689 (2011).

         The mother asserts that a court of this state has exclusive jurisdiction over the motion for visitation because the trial court had jurisdiction over the neglect petition. The mother asserts, in turn, that the trial court had jurisdiction over the neglect petition because of the undisputed fact that both the mother and the minor child lived in Connecticut at the inception of the neglect petition. In support of this position, the mother cites General Statutes § 46b-56 (a).

         Section 46b-56 (a) provides in relevant part that ‘‘[i]n any controversy before the Superior Court as to the custody or care of minor children . . . the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children if it has jurisdiction under the provisions of [the act].'' The act, in turn, provides that ‘‘a court of this state has jurisdiction to make an initial child custody determination if . . . [t]his state is the home state of the child on the date of the commencement of the child custody proceeding . . . .'' General Statutes § 46b-115k (a) (1).[6]‘‘ ‘Home state' '' is defined as ‘‘the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months old, the term means the state in which the child lived from birth with any such parent or person acting as a parent. A period of temporary absence of any such person is counted as part of the period . . . .'' General Statutes § 46b-115a (7). On the basis of this language, we agree with the mother that there is no dispute that the trial court properly exercised jurisdiction over the neglect petition because both the mother and the minor child resided in Connecticut at the inception of the neglect petition.

         Contrary to the mother's assertion, however, the fact that the trial court properly exercised jurisdiction over the neglect petition does not end our inquiry. The question raised in the current appeal requires us to determine whether the trial court currently has exclusive jurisdiction over the motion for visitation brought by the mother.

         General Statutes § 46b-115l addresses this precise issue. Section 46b-115l (a) provides that ‘‘a court of this state which has made a child custody determination pursuant to sections 46b-115k to 46b-115m, inclusive, has exclusive, continuing jurisdiction over the determination until: (1) A court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state; or (2) a court of this state determines that (A) this state is not the home state of the child, (B) a parent or a person acting as a parent continues to reside in this state but the child no longer has a significant relationship with such parent or person, and (C) substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships.'' (Emphasis added.) Section 50A-202 (a) (2) of the North Carolina General Statutes contains similar language.

         In the present case, at the oral argument on the motion for visitation, counsel for the mother represented to the trial court that the mother resided in Massachusetts and that both the father and the minor child resided in North Carolina. Indeed, none of the parties disputed these jurisdictional facts or otherwise attempted to challenge the representations made by counsel for the mother. Accordingly, the trial court was entitled to rely on these factual representations in order to reach its decision regarding jurisdiction. See, e.g., State v. Pires, 310 Conn. 222, 238, 77 A.3d 87 (2013) (‘‘as a general proposition, the trial court may rely on factual and legal representations by counsel to the court, which are then attributable to and binding on the attorney's client''); see also State v. Smith, 289 Conn. 598, 609, 960 A.2d 993 (2008); Collins v. Lewis, 111 Conn. 299, 305, 149 A. 668 (1930). Accordingly, we conclude that, pursuant to § 46b-115l (a), the fact that all of the parties-the mother, the father and the minor child-no longer reside in this state supports the trial court's determination that it did not have exclusive, continuing jurisdiction in the present case.[7]

         The mother also claims that the fact that, at the time she filed the motion for visitation, her appeal of the neglect petition was pending before this court supports her claim that North Carolina cannot exercise jurisdiction over the mother's motion for visitation. We disagree.

         In support of her claim, the mother cites § 50A-206 (a) of the North Carolina General Statutes, which was adopted under the act. Section 50A-206 (a) provides in relevant part as follows: ‘‘[a] court of this [s]tate may not exercise its jurisdiction under this [p]art if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this [a]rticle, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this [s]tate is a more convenient forum . . . .'' See also General Statutes § 46b-115p (a).[8] The plain language of ยง 50A-206 (a) clearly provides that, in ...


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