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In re Adrian K.

Appellate Court of Connecticut

July 18, 2019


         Argued May 29, 2019.

Page 1272

[Copyrighted Material Omitted]

Page 1273

         Appeal from Superior Court in the judicial district of Middletown, Juvenile Matters, Woods, J.

          Karen Oliver Damboise, for the appellant (respondent father).

         Carolyn A. Signorelli, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

          Christopher DeMatteo, for the minor child.

         Keller, Bright and Devlin, Js.


         BRIGHT, J.

         [191 Conn.App. 399] The respondent father, Luis K.,[1] appeals from the judgment of the trial court denying his motion [191 Conn.App. 400] to dismiss an order of temporary custody and modifying the dispositive order from protective supervision with the mother to commitment to the custody of the petitioner, the Commissioner of Children and Families. The respondent claims that (1) the court improperly denied his motion to dismiss the order of temporary custody for lack of subject matter jurisdiction, and (2) the court’s denial of his motion to dismiss violated his right to due process under the fourteenth amendment to the United States constitution. We disagree and, accordingly, affirm the judgment of the trial court.

          The following facts and procedural history are relevant. On November 29, 2017, the petitioner filed a neglect petition on behalf of the infant minor child. An addendum to the petition stated that the mother had used poor judgment by leaving the child alone in a car with the respondent, who had physically abused the child in October, 2017, despite the "clear recommendation" of the Department of Children and Families (department) that the respondent be supervised at all times when he was with the child. The child was adjudicated neglected on March 6, 2018. The court, Woods, J., ordered placement of the child with the mother with six months of protective supervision until September 6, 2018. Specific steps for the respondent and the mother were ordered. On April 10, 2018, the respondent was convicted of risk of injury to a child and assault in the third degree arising out of his physical abuse of the child in October, 2017. At the respondent’s sentencing, the court issued a standing criminal protective order prohibiting the respondent from having any contact with the child until January 1, 2083. On August 2, 2018, the court, Sanchez-Figueroa,

Page 1274

J., granted the petitioner’s motion to extend protective supervision of the child in the mother’s custody until December 6, 2018. Following an in-court review on November 1, 2018, the court ordered that full custody was vested [191 Conn.App. 401] with the mother and confirmed that the period of protective supervision would expire on December 6, 2018.

         On November 26, 2018, the department received a new referral alleging that the mother was engaging in substance abuse and was allowing the respondent access to the child. After an investigation, the petitioner, pursuant to General Statutes § 17a-101g, placed a ninety-six hour hold on the child and removed him from the mother’s custody. On November 29, 2018, the petitioner filed a motion for an order of temporary custody, which was granted ex parte that same day.[2] A preliminary hearing was scheduled for December 7, 2018. In light of the order of temporary custody, the petitioner, pursuant to Practice Book § 33a-6 (c),[3] should have filed a motion to modify protective supervision at least one business day prior to the preliminary hearing. The petitioner, however, did not file a motion [191 Conn.App. 402] to open and modify the dispositional order of protective supervision to commitment until the morning of the hearing on December 7, 2018.

         At the December 7, 2018 preliminary hearing, the respondent argued that protective supervision had expired on December 6, 2018, the motion to modify was filed one day late according to Practice Book § 33a-6 (c), and that "as of today, there is no underlying neglect petition that accompanies this order ... of temporary custody .... Therefore, we would argue that the court does not have jurisdiction, as there is no underlying neglect petition and the department did not file any such motion to modify protective supervision, pursuant to this Practice Book section within the time period specified in that Practice Book section."

          The court sustained the order of temporary custody without prejudice until further order of the court. The court allowed the respondent, who was represented by counsel, time to brief his jurisdictional argument. The ...

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