In re Yassell B. ( 2021 )

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IN RE YASSELL B.*
(AC 44478)
Prescott, Alexander and DiPentima, Js.
Syllabus
The petitioner, the Commissioner of Children and Families, filed a neglect
petition and a motion for an order of temporary custody, alleging that
the respondent mother had abused her minor child. The respondent
father, B, who was divorced from the mother, was named as the father on
the child’s birth certificate, and the child was identified in the dissolution
judgment rendered in New York as a child of the respondents’ marriage.
C claimed to be the child’s father, and the commissioner filed a motion
to adjudicate the paternity of the child. Although a previous paternity
test had indicated a 99.99 percent probability that C was the child’s
father, the New York family court, which was not presented with the
results of that test, dismissed an action C brought to establish his pater-
nity of the child, thereby leaving in place the dissolution court’s adjudica-
tion that the child was a child of the respondents’ marriage. The court
here issued a ruling on the commissioner’s motion to adjudicate pater-
nity, concluding that the paternity determinations by the state of New
York should be afforded full faith and credit and declining to disturb
the New York findings that B was the child’s father. The court also
determined that C was not the child’s legal father and dismissed C as
a party to the neglect proceeding, after which the court adjudicated
the child as abused and ordered a period of protective supervision. C
thereafter appealed to this court. During the pendency of C’s appeal,
the underlying neglect proceeding was resolved, the child was returned
to the mother and the period of protective supervision expired. Held
that C’s appeal was dismissed as moot, as there was no actual contro-
versy from which the adjudication of the child’s paternity would afford
C any practical relief: the trial court addressed the issue of paternity
only to determine which parties had cognizable interests at stake in the
neglect proceeding, and, in light of the termination of that proceeding,
no orders would be issued that could affect C’s alleged interest in or
relationship to the child; moreover, vacatur of the paternity judgment
was appropriate, as C did not cause the appeal to become moot through
any voluntary action, he was not permitted to participate in the neglect
proceeding after the court ruled on the motion to adjudicate the child’s
paternity, and it would be unfair to bind him to a judgment that he
challenged but, through no fault of his own, could not contest; further-
more, vacatur was appropriate to prevent legal consequences from
spawning as a result of the court’s determination to afford the New
York paternity adjudications full faith and credit as well as the court’s
conclusion that C is not the legal father of the child.
Argued September 9—officially released November 22, 2021**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to adjudicate the respondents’ minor child abused,
brought to the Superior Court in the judicial district of
New Britain, Juvenile Matters, where the court, Hud-
dleston, J., denied the motion of Carlos G. to intervene;
thereafter, the court issued a ruling on the petitioner’s
motion to adjudicate the paternity of the minor child;
subsequently, the respondent mother was presented to
the court on a plea of nolo contendere to the charge
of abuse; thereafter, the court adjudicated the minor
child as abused and issued an order of protective super-
vision, and Carlos G. appealed to this court. Appeal
dismissed; judgment vacated.
James P. Sexton, assigned counsel, with whom was
John R. Weikart, assigned counsel, for the appellant
(Carlos G.).
Joshua D. Michtom, assistant public defender, for
the appellee (respondent father Daniel B.).
John E. Tucker, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, Clare E. Kindall, solicitor general, and Evan M.
O’Roark, assistant attorney general, for the appellee
(petitioner).
Opinion
PER CURIAM. In this neglect proceeding, Carlos G.
appeals from the judgment of the trial court on the
motion to adjudicate the paternity of Yassell B. filed
by the petitioner, the Commissioner of Children and
Families (commissioner), in which the court deter-
mined that he was not the legal father of Yassell and
dismissed him as a party to the neglect proceeding.1
On appeal, Carlos G. claims that the trial court
improperly (1) afforded full faith and credit to the prior
judgments regarding paternity rendered in New York
(New York judgments), (2) applied the doctrines of res
judicata and collateral estoppel to give the New York
judgments preclusive effect, and (3) concluded that it
was in the best interest of Yassell that the respondent
Daniel B. remain the legal father of Yassell. Before this
court, Daniel B. argued that the appeal has become
moot due to the resolution of the underlying child pro-
tection action, which included a motion for an order
of temporary custody and a neglect petition alleging
that Yassell had been abused by the respondent Matilde
F. We ordered the parties to submit supplemental briefs
specifically addressing whether (1) Carlos G.’s claim
was moot due to the resolution of the underlying child
protection action and (2) vacatur of the paternity deter-
mination would be an appropriate remedy. After consid-
ering the parties’ supplemental briefs and the record
in this case, we conclude that Carlos G.’s claim is moot
and vacatur is appropriate.
The following facts, as found by the trial court, and
procedural history are relevant. The respondents, Mati-
lde F. and Daniel B., ‘‘were married for a number of
years and resided in New York. They have a daughter,
Shairi, who was born in 2005. Yassell was born in 2011,
while [Matilde F.] and [Daniel B.] were married. [Daniel
B.] is named as father on Yassell’s birth certificate. . . .
On October 12, 2012, [Matilde F.] and [Daniel B.] were
divorced. The judgment of divorce issued by the New
York Supreme Court . . . identified Shairi and Yassell
as the ‘children of the marriage’ and awarded sole cus-
tody to [Matilde F.]. [Daniel B.] was awarded reasonable
rights of visitation and ordered to pay child support for
the two children . . . .
‘‘In June, 2015, a DNA [paternity] test was conducted
by [Laboratory Corporation of America] in Hempstead,
N.Y. . . . The report states that [Carlos G.] and Yassell
were tested on June 2, 2015, and the results rendered
on June 10, 2015, indicate a 99.99 percent probability
that [Carlos G.] is Yassell’s father.
‘‘On April 4, 2016, [Carlos G.] commenced a paternity
action in New York Family Court, seeking to establish
his paternity of Yassell. According to the ‘Decision and
Order after Fact Finding’ rendered in that proceeding
. . . a hearing was conducted on [Carlos G.’s] petition
. . . .’’ In that proceeding, DNA evidence of paternity
was not presented to the court for its consideration.
‘‘At the conclusion of the hearing, based on the applica-
tion of New York statutes and the court’s findings as
to the credibility of witnesses, the court found that
[Carlos G.] had failed to meet his burden of proof
because he failed to present clear and convincing evi-
dence to rebut the presumption of legitimacy. The court
dismissed [Carlos G.’s] paternity petition, leaving in
effect the adjudication of the New York Supreme Court
that Yassell was a ‘child of the marriage’ of [the respon-
dents].’’
In 2017, Matilde F., Shairi and Yassell moved to Con-
necticut where they lived with Carlos G. On September
18, 2020, the commissioner instituted the underlying
neglect action by filing a motion for an order of tempo-
rary custody and a petition alleging that Matilde F. had
abused Yassell. The court, C. Taylor, J., granted the
commissioner’s motion and vested temporary custody
of Yassell in the commissioner. On September 25, 2020,
the trial court, Huddleston, J., held a preliminary hear-
ing on the order of temporary custody, at which both
Carlos G. and Daniel B. appeared and claimed to be
the father of Yassell. On September 29, 2020, the com-
missioner filed a motion to adjudicate paternity of Yas-
sell. The commissioner argued that paternity should
be determined prior to addressing the merits of the
contested order of temporary custody to determine who
should participate in that proceeding. During the pen-
dency of the neglect proceeding, both the respondents,
Matilde F. and Daniel B., and Carlos G. had weekly
supervised visits with Yassell.
The court held a hearing on the commissioner’s
motion to adjudicate paternity on September 30 and
November 9 and 23, 2020. On November 25, 2020, the
court issued its ruling on the motion to adjudicate pater-
nity. The court concluded that the ‘‘paternity determina-
tions by the state of New York should be afforded full
faith and credit2 and that the New York findings that
[Daniel B.] is Yassell’s father should not be disturbed.’’
(Footnote added.) The court also concluded, in the
alternative, that, even if it did not give the New York
paternity adjudication full faith and credit, ‘‘the court
finds that it is in Yassell’s best interest to preserve
the parent-child relationship with [Daniel B.] that has
existed since his birth. . . . [Carlos G.] is hereby dis-
missed as a party to the proceeding.’’ This appeal fol-
lowed.
Additionally, on November 25, 2020, the trial court
accepted the plea of nolo contendere entered by Matilde
F. to the allegations of abuse and adjudicated Yassell as
abused and ordered a period of protective supervision,
which terminated on March 25, 2021. Hence, during the
pendency of this appeal, the underlying neglect pro-
ceeding was resolved and Yassell was returned to the
custody of Matilde F. Having considered the entirety
of the record, including the supplemental briefs of the
parties, we conclude that Carlos G.’s claim is moot.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[a] court’s subject matter jurisdiction. . . . [A]n actual
controversy must exist not only at the time the appeal
is taken, but also throughout the pendency of the
appeal. . . . When, during the pendency of an appeal,
events have occurred that preclude an appellate court
from granting any practical relief through its disposition
of the merits, a case has become moot.’’ (Internal quota-
tion marks omitted.) In re Naomi W., 206 Conn. App.
138, 143, 258 A.3d 1263, cert. denied, 338 Conn. 906,
258 A.3d 676 (2021). ‘‘It is a [well settled] general rule
that the existence of an actual controversy is an essen-
tial requisite to appellate jurisdiction; it is not the prov-
ince of appellate courts to decide moot questions, dis-
connected from the granting of actual relief or from the
determination of which no practical relief can follow.’’
(Internal quotation marks omitted.) In re Forrest B.,
109 Conn. App. 772, 775, 953 A.2d 887 (2008).
We conclude that the appeal before us is moot
because there is no actual controversy from which this
court can grant any practical relief to Carlos G. Carlos
G.’s appeal of the trial court’s determination of paternity
arose out of a neglect proceeding. The court addressed
the issue of paternity only in order to determine which
parties had cognizable interests at stake in that proceed-
ing. During the pendency of this appeal, however, the
underlying neglect proceeding was resolved. Yassell has
been returned to the custody of his mother, Matilde F.,
and the period of protective supervision has expired.
As a result, adjudicating the paternity of Yassell in the
context of this case will afford Carlos G. no practical
relief because, in light of the termination of this neglect
proceeding, no orders will be issued that could affect
Carlos G.’s alleged interest in or relationship to Yassell.
Thus, there is no actual controversy from which this
court can grant practical relief. See In re Alba P.-V.,
135 Conn. App. 744, 746–47, 42 A.3d 393 (dismissing
appeal as moot when, during pendency of appeal from
trial court’s judgment adjudicating children neglected
and ordering period of protective supervision, period
of protective supervision expired), cert. denied, 305
Conn. 917, 46 A.3d 170 (2012).
Having concluded that this appeal is moot, we next
must determine whether vacatur of the underlying Con-
necticut paternity judgment is appropriate. ‘‘Vacatur is
commonly utilized . . . to prevent a judgment, unre-
viewable because of mootness, from spawning any legal
consequences. . . . In determining whether to vacate
a judgment that is unreviewable because of mootness,
the principal issue is whether the party seeking relief
from [that] judgment . . . caused the mootness by vol-
untary action. . . . A party who seeks review of the
merits of an adverse ruling, but is frustrated by the
vagaries of circumstance, ought not in fairness be
forced to acquiesce in the judgment. . . . The same is
true when mootness results from unilateral action of
the party who prevailed below. . . . Nevertheless, our
law of vacatur, though scanty . . . recognizes that
[j]udicial precedents are presumptively correct and val-
uable to the legal community as a whole. They are not
merely the property of private litigants and should stand
unless a court concludes that the public interest would
be served by a vacatur. . . . Thus, [i]t is the [appel-
lant’s] burden, as the party seeking relief from the status
quo of the [trial court] judgment, to demonstrate . . .
equitable entitlement to the extraordinary remedy of
vacatur.’’ (Internal quotation marks omitted.) Thornton
v. Jacobs, 339 Conn. 495, 502, A.3d (2021); see
also In re Emma F., 315 Conn. 414, 430–31, 107 A.3d
947 (2015).
It is clear that Carlos G. did not cause this appeal to
become moot through any voluntary action. After the
court issued its ruling on the commissioner’s motion
to adjudicate the paternity of Yassell, Carlos G. was
not permitted to participate in the underlying neglect
action and took no further part in those proceedings.
Vacatur is appropriate to prevent legal consequences
from spawning as a result of the trial court’s determina-
tion that the New York judgment should be afforded
full faith and credit and its ultimate conclusion that
Carlos G. is not the legal father of Yassell.3 In this appeal,
Carlos G. has argued that the court’s conclusions
regarding these issues were improper. Therefore,
because we substantively will not address a moot issue,
we conclude that it would be unfair to Carlos G. to
bind him to a judgment that he has challenged but,
through no fault of his own, cannot contest. See Private
Healthcare Systems, Inc. v. Torres, 278 Conn. 291, 304,
898 A.2d 768 (2006). Accordingly, we conclude that
vacatur of the court’s paternity decision is appropriate
in this circumstance.
The appeal is dismissed and the judgment of the trial
court regarding the paternity of Yassell B. is vacated.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** November 22, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
At the outset, we note that the court’s paternity determination constitutes
an appealable final judgment. ‘‘The right of appeal is purely statutory. It is
accorded only if the conditions fixed by statute and the rules of court for
taking and prosecuting the appeal are met. . . . Because our jurisdiction
over appeals, both criminal and civil, is prescribed by statute, we must
always determine the threshold question of whether the appeal is taken
from a final judgment before considering the merits of the claim.’’ (Citation
omitted; internal quotation marks omitted.) In re Marcquan C., 202 Conn.
App. 520, 528, 246 A.3d 41, cert. denied, 336 Conn. 924, 246 A.3d 492 (2021).
In State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), our Supreme Court
articulated the standard for determining when an otherwise interlocutory
order is immediately appealable. It permits appeals from such orders ‘‘in
two circumstances: (1) where the order or action terminates a separate and
distinct proceeding, or (2) where the order or action so concludes the rights
of the parties that further proceedings cannot affect them.’’ Id., 31.
Applying the second Curcio prong in Madigan v. Madigan, 224 Conn.
749, 620 A.2d 1276 (1993), our Supreme Court held that ‘‘a temporary order
of custody is a final judgment for the purpose of an immediate appeal
because a parent’s custodial rights during the course of dissolution proceed-
ings cannot otherwise be vindicated at any time, in any forum.’’ Id., 754–55.
In the present case, upon the court’s paternity determination, Carlos G. was
dismissed from the neglect proceeding. Following the court’s order, he was
unable to assert rights that would have been afforded him had he remained
a party to that action and those rights were concluded so that further
proceedings could not affect them. Thus, an immediate appeal was the only
reasonable method of ensuring that the important rights surrounding his
parent-child relationship were adequately protected. See id., 757.
2
The full faith and credit clause of the constitution of the United States,
article four, § 1, requires that the judicial proceedings of a state be given
full faith and credit in every other state. ‘‘The judgment rendered in one
state is entitled to full faith and credit only if it is a final judgment . . . .’’
(Internal quotation marks omitted.) Krueger v. Krueger, 179 Conn. 488, 490,
427 A.2d 400 (1980).
3
We recognize that there are instances in which both our Supreme Court
and this court have declined to use the remedy of vacatur to vacate the
judgment of a trial court, stating that a trial court’s decision is not binding
precedent. See In re Emma F., supra, 315 Conn. 433; In re Angela V., 204
Conn. App. 746, 760–62, 254 A.3d 1042, cert. denied, 337 Conn. 907, 252 A.3d
365 (2021). However, on the basis of these facts and circumstances, vacatur
of the trial court’s judgment will ensure Carlos G. is not precluded from
relitigating the issues raised in this appeal should he want to do so in the
future. See State v. Charlotte Hungerford Hospital, 308 Conn. 140, 146 and
n.8, 60 A.3d 946 (2013) (vacating decisions of appellate and trial courts and
stating that ‘‘[v]acatur of the trial court judgment will further aid in the
antipreclusionary aspect of the vacatur remedy’’); Private Healthcare Sys-
tems, Inc. v. Torres, 278 Conn. 291, 304, 898 A.2d 768 (2006) (‘‘Once we
pass from the issue of mootness to the issue of remedy, we still may encoun-
ter some lingering though remote possibility of residual collateral harm
. . . . Recourse to the equitable tradition of vacatur may be warranted,
then, partly because it eliminates that possibility altogether. . . . [Thus]
[i]t may . . . be speculative whether leaving the [judgment] standing could
cause some residual harm, but vacating the [judgment] puts the speculation
to rest.’’ (Internal quotation marks omitted.)), quoting American Family
Life Assurance Co. of Columbus v. Federal Communications Commission,
129 F.3d 625, 631 (D.C. Cir. 1997).