Maria G. v. Commissioner of Children & Families

          Argued November 14, 2018

         Procedural History

         Petition for a writ of habeas corpus seeking custody of a minor child from the respondent Commissioner of Children and Families, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the matter was transferred to the judicial district of Stamford-Norwalk; thereafter, the court, Hon. Barbara M. Quinn, judge trial referee, granted the respondent's motion for summary judgment, denied the petitioner's motion for summary judgment, and rendered judgment dismissing the habeas petition; subsequently, the court denied the petitioner's motion to reargue and reconsider, and the petitioner appealed to this court; thereafter, the court, Hon. Barbara M. Quinn, judge trial referee, denied the petitioner's motions to open judgment and for articulation; subsequently, this court granted the petitioner's motion for review, but denied the relief requested therein. Affirmed.

          Dana M. Hrelic, with whom were Brendon P. Lev-esque and, on the brief, Karen L. Dowd, Scott T. Gaross-hen and Glenn Formica, for the appellant (petitioner).

          Michael Besso, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (respondent).

          Joshua Michtom, assistant public defender, for the minor child.

          Alvord, Bright and Bear, Js.

          OPINION

          BEAR, J.

         The petitioner, Maria G., appeals from the trial court's rendering of summary judgment in favor of the respondent, the Commissioner of Children and Families, on the petitioner's writ of habeas corpus seeking custody of the minor child, Santiago.^[1] On appeal, the petitioner claims that the court erroneously failed to credit a Guatemalan court's decree, which purportedly granted her parental guardianship rights over, and custody of, Santiago, when the court concluded that (1) public policy prohibited recognition of the decree because it was premised on a false birth certificate, and (2) the decree was obtained without notice to the respondent.^[2] We affirm the judgment of the court.

         The following factual and procedural history is relevant to our disposition of this appeal.^[3] The petitioner is a citizen of Argentina and a legal resident of the United States who resides in Stamford, Connecticut. Shortly after Santiago's birth in 2009, the petitioner, utilizing both a birth certificate that falsely listed her, and her husband at that time, as Santiago's parents and a fraudulent United States passport, illegally brought him into the United States.^[4] Santiago remained in the petitioner's care until October, 2012, when the Superior Court, Heller, J., granted the respondent's motion for an order of temporary custody. In re Santiago G., 318 Conn. 449, 456-57, 121 A.3d 708 (2015). After initially removing Santiago to a temporary foster home in November, 2012, the Department of Children and Families (department) placed him in another foster home in December, 2012, where he remains today. Id., 457.

         On November 8, 2013, the petitioner filed a petition for a writ of habeas corpus seeking to regain custody of Santiago. The petitioner alleged that the department's refusal to release Santiago to her custody violated her and Santiago's federal and state constitutional rights to due process and was contrary to Santiago's best interest. On July 3, 2014, the respondent filed a motion to dismiss the petition claiming that the petitioner lacked standing because she was neither the biological parent nor a properly declared adoptive parent of Santiago, and she had not otherwise claimed to be Santiago's legal guardian. The petitioner filed an objection to the motion to dismiss, claiming that on September 19, 2013, a Guatemalan court had recognized the validity of the admittedly false birth certificate and, therefore, recognized her as Santiago's parent. On October 23, 2014, the court issued a memorandum of decision in which it found that ‘‘the mere assertion by the petitioner that she is the legal guardian of the child under [Guatemalan] law, without more, is insufficient to confer standing.'' As a result of this finding, the court ordered the petitioner to offer proof, at a preliminary evidentiary hearing on her standing, that she was Santiago's legal guardian.

         On June 17, 2015, prior to the evidentiary hearing, Santiago's biological mother filed a declaratory action with a Guatemalan court asking the court to grant custody of Santiago to the petitioner. One day later, on June 18, 2015, the Guatemalan court issued a declaratory judgment granting the petitioner ‘‘parental rights, custody, and representation [of Santiago] . . . .'' The Guatemalan court relied on the false birth certificate as well as an affidavit from Santiago's biological mother in granting custody of Santiago to the petitioner.

         On November 17, 2015, the court held the evidentiary hearing. During the hearing, the petitioner submitted a copy of the judgment file from the Guatemalan court proceedings as a full exhibit and presented testimony of the Guatemalan attorney who had represented Santiago's biological mother regarding the Guatemalan court's decree. The court subsequently allowed both parties to file post hearing briefs. The respondent argued in her brief that the Guatemalan decree did not deserve recognition by Connecticut courts because (1) the process underlying that decree contained procedural irregularities fatal to recognition, and (2) the substance of the decree was based on an admittedly false birth certificate.

         The court, Colin, J., rendered its decision on February 16, 2016, and found that the petitioner had established prima facie evidence of her standing, ^[5] but noted that ‘‘[t]he determination that a prima facie case has been established in denying a motion to dismiss does not necessarily mean that the court, at the time of the final hearing on the merits, is required to take as true the evidence offered by the petitioner at the standing hearing.'' On March 7, 2016, the respondent filed a motion to reargue. The court thereafter granted the respondent's motion in part, denied it in part, and reaffirmed its decision on the issue of standing.

         The parties subsequently filed separate motions for summary judgment. The petitioner argued in her motion that the court's previous recognition of prima facie evidence of standing established that there was no genuine issue of material fact as to the petitioner's legal right to custody of Santiago. The respondent argued in her motion that the Guatemalan court decree was not entitled to recognition because it was based on a false birth certificate, and notice of the Guatemalan proceedings had not been provided to the respondent.

         On January 12, 2017, the court granted the respondent's motion for summary judgment, denied the petitioner's motion for summary judgment, and dismissed the habeas petition.^[6] In rendering its decision, the court applied the Uniform Child Custody Jurisdiction and Enforcement Act, General Statutes § 46b-115 et seq. (act), and determined that the Guatemalan court decree was not entitled to recognition because it was based on the petitioner's fraudulent and illegal conduct that was repugnant to the public policy of this state, it relied on the false birth certificate, and it was secured without adequate notice to the respondent. The court, therefore, concluded that the petitioner could not demonstrate that she is the biological parent or legal guardian of Santiago and dismissed the habeas petition. On February 1, 2017, the petitioner filed a motion to reargue, and the court reaffirmed its decision on June 20, 2017. See footnote 1 of this opinion. This appeal followed.^[7]

         We first set forth the applicable standard of review. ‘‘Our review of the trial court's decision to grant [a] motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.'' (Citation omitted; internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 779-80, 73 A.3d 851 (2013).

         I

         The petitioner claims that the same evidence used by the court to rule in her favor on the motion to dismiss also established, at the very least, a genuine issue of material fact that precluded the court from granting the respondent's motion for summary judgment. Specifically, the petitioner argues that, despite the admittedly false birth certificate, the Guatemalan court's decree created a genuine issue of material fact that she was the legal guardian or custodian of Santiago. The respondent claims that the court properly determined that there was no genuine issue of material fact that the Guatemalan decree was not entitled to recognition, arguing that the petitioner's participation in the fraud regarding the birth certificate made enforcement of the decree repugnant to the public policy of this state.

         We first note that the false birth certificate cannot be the basis for the petitioner's claim for custody because it clearly was fraudulent, and the petitioner has conceded that the birth certificate falsely listed her and her former husband as Santiago's biological parents. Moreover, our Supreme Court determined that the birth certificate has no legal effect in the United States. See In re Santiago G., supra, 318 Conn. 471-72 (‘‘[A]lthough [the petitioner] was in possession of a birth certificate naming her as Santiago's mother, she ultimately conceded that that birth certificate was fraudulent. As we previously have explained, [a] birth certificate is a vital record that must accurately reflect legal relationships between parents and children-it does not create those relationships. . . . In ...