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Garvey v. Valencis

Court of Appeals of Connecticut

October 31, 2017

DENISE A. GARVEY
v.
STANLEY M. VALENCIS

          Argued April 25, 2017

          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.

          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 evidence, 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 provides 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 requiring 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 application 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 consistent 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 continuance under certain conditions, and to require the hearing to be completed 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 plaintiffs 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 psychological 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 following the incident, as reflected by his academic and behavioral regression, demonstrated that the child was deeply affected by the incident.

         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, Simon, J., granted the defendant's ex parte application to suspend the plaintiffs visitation rights; thereafter, following evidentiary hearings, the court, Simon, J., rendered judgment sustaining the emergency ex parte custody order, from which the plaintiff appealed to this court; subsequently, the court Simon, J., issued certain orders regarding therapy for the minor child, and the plaintiff filed an amended appeal with this court; thereafter, the court, Simon, J., issued an articulation of its decision. Affirmed.

          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-56f[1] denying the plaintiff visitation 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 relevant 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 maintained, 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 defendant 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.'' Specifically, 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 psychological 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 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 child's therapist recommended 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. Academically, 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 constitution 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 statute, and thus a Practice Book provision, involves a question of law over which our review is plenary.'' Wiseman 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 ...


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