In re Santiago G. ( 2015 )

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IN RE SANTIAGO G.*
(SC 19449)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued May 19—officially released August 21, 2015**
Elizabeth Knight Adams, with whom was Matthew
Eagan, for the appellant (respondent mother).
Michael Besso, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Gregory T. D’Auria, solicitor general, for the
appellee (petitioner).
Joshua Michtom, assistant public defender, for the
minor child.
Opinion
ROGERS, C. J. This case presents a stark illustration
of how a person’s conscious decision to disregard the
law, probably motivated by the best of intentions, never-
theless can lead to unfortunate, unintended conse-
quences. The respondent biological mother, Melissa M.
(respondent), appeals from the judgment of the Appel-
late Court affirming the trial court’s order denying her
motion to revoke the commitment of her son, Santiago
G., to the petitioner, the Commissioner of Children and
Families (commissioner), and to transfer his custody
to a nonrelative third party, Maria G., who had acted
as Santiago’s psychological parent for the first three
and one-half years of his life (motion to revoke). In re
Santiago G., 154 Conn. App. 835, 108 A.3d 1184 (2015).
The respondent claims that the Appellate Court’s judg-
ment should be reversed because the trial court improp-
erly denied her motion to revoke, as well the
commissioner’s motion to open and set aside an earlier
adjudication of neglect (motion to open), because the
basis for removing Santiago from Maria G.’s care and
adjudicating him neglected never actually existed, but
rather, was a mistake. We disagree and, accordingly,
affirm the judgment of the Appellate Court.
I
FACTUAL BACKGROUND AND PRETRIAL
PROCEEDINGS
The following facts and procedural history are rele-
vant to this appeal. Santiago was born in Guatemala to
the respondent on April 18, 2009. He was cared for
since his birth, however, by Maria G., an Argentinian
citizen and legal permanent resident of the United
States who resided in Stamford, and, for some of that
time, by Henry L., Maria G.’s husband.1
On October 16, 2012, the commissioner filed a motion
for an order of temporary custody of Santiago on the
basis of neglect. An accompanying summary of facts
substantiating the commissioner’s allegations of
neglect, which was supported by the affidavits of two
social workers for the Department of Children and Fam-
ilies (department), Martha Saavedra and Ingrid Aarons,
stated the following: On September 17, 2012, the depart-
ment had received a report from the federal Department
of Homeland Security (Homeland Security)2 stating that
Maria G. and Henry L. possibly had purchased Santiago
in Guatemala and smuggled him into the United States
on June 14, 2009.3 On October 10, 2012, Saavedra and
a Homeland Security investigator had conducted a joint
visit to Maria G.’s home to question her about the allega-
tions in the report. Maria G. told the two that her former
housekeeper’s mother had introduced her to an individ-
ual, later identified as the respondent, in Guatemala.
According to Maria G., the respondent was a teenager
at the time and an orphan. Maria G. also stated that the
respondent was pregnant and interested in giving away
her baby. Maria G. indicated further that the respondent
did not have proper identification, and that she could
not remember the respondent’s name. According to
Saavedra’s supplemental affidavit, Maria G. further told
her and the Homeland Security investigator that Maria
G. and Henry L. had paid an unnamed physician, at an
unknown clinic in Guatemala, to deliver the baby; that
they had a midwife falsely state that the baby was Maria
G.’s in order to obtain a birth certificate naming Maria
G. and Henry L. as the baby’s parents; and that they had
paid another party $6000 for a falsified United States
passport for the baby to permit his entry into the United
States. Upon receiving the foregoing information, the
department had invoked a ninety-six hour hold over
Santiago, and he was placed in a licensed foster home.
The department represented to the court that the where-
abouts of Henry L. were unknown, despite the depart-
ment’s efforts to contact him, and that Santiago had
‘‘no known legal guardian or legal custodian.’’
Aarons’ supplemental affidavit provided additional
reasons in support of the motion for an order of tempo-
rary custody. In that affidavit, Aarons attested that, after
the ninety-six hour hold had expired, Santiago had been
returned to Maria G. because two other trial courts,
Mottolesse, J., and White, J., had denied the commis-
sioner’s two previous requests for orders of temporary
custody, one judge reasoning that Santiago’s ‘‘ ‘illegal
status’ ’’ did not constitute evidence of immediate physi-
cal danger. Aarons further attested to the following:
‘‘Although it remains unclear how [Maria G.] obtained
physical custody of this child, Homeland Security has
an active investigation into the allegations of child traf-
ficking. Santiago’s safety and [well-being] is now com-
pletely reliant on [Maria G.] and her statement that she
will keep the child safe and not take the child out of
this jurisdiction. . . .
‘‘[The department] has no independent information
as to the identity of the biological parents of the child or
the circumstances which surrounded [Maria G.] having
obtained physical custody except by [Maria G.’s] own
uncorroborated statement. . . .
‘‘Upon information and belief, [Maria G.] is in the
United States with a [g]reen [c]ard. Her actions in con-
nection with smuggling the child into the United States
may result in her being deported to Argentina and/or
subject to other criminal sanctions. . . .
‘‘Because of the pending Homeland Security investi-
gation, the [department’s] current involvement, and the
denial of the two [previous] [m]otions for [o]rder of
[t]emporary [c]ustody, the risk to the child has
increased. In particular, the risk of [Maria G.’s] flight
with the child, despite her assurances otherwise. The
child’s safety should not be based on the assurances
of an individual who admittedly brought the child into
this country under fraudulent circumstances. . . .
‘‘The child’s medical care and daycare decisions have
all been made by [Maria G.] without her having any
legal right to make these decisions. This again places the
child in danger [without] any legal guardian available to
make these decisions. Because of [Maria G.’s] lack of
status in this action the [c]ourt’s jurisdiction to make
orders against her for the protection of the child is
tenuous at best. . . .
‘‘The [department] is seeking access to this child to
ensure his safety and [well-being]. Still, only a [full-
time] legal guardian and/or custodian, with [twenty-
four] hour control and access can ensure that the child
is not removed from the jurisdiction or that medical or
other emergencies can be appropriately addressed.
. . .
‘‘Henry [L.] . . . is alleged to have acted in concert
with [Maria G.] in [the] acquisition and transport of this
child into the United States. Although the [department]
has been given a telephone number for [Henry L.] by
[Maria G.], [Henry L.] has not returned [the depart-
ment’s] calls. Although [Maria G.] has agreed to remain
in contact with [the department], there is no guarantee
that she will follow through with her word. . . .
‘‘[Maria G.] has not disclosed to the [department]
pertinent information [such as] the biological mother’s
or father’s names, the midwife’s name, the doctor or
the clinic where the delivery occurred. [Maria G.] also
has failed to disclose the identity of the person who
provided the passport for the child. Nor has she pro-
vided the [department] with the passport or a copy
thereof, as she stated it was destroyed. However, [Maria
G.] has reported that she paid someone for the delivery
of the child and for the fraudulent passport. . . .
‘‘By her statements and her actions, [Maria G.] is
not being completely candid and cooperative with the
[department] in this investigation. The safety and [well-
being] of this child should not be entrusted to a person
who has disclosed involvement in potential criminal
conduct. . . .
‘‘To leave the child with [Maria G.] would keep the
child in a zone of immediate physical danger. . . .
‘‘[The attorney for the minor child] is in agreement
with the [o]rder of [t]emporary [c]ustody.’’
On October 16, 2012, on the basis of the foregoing
allegations, the trial court, Heller, J., granted the com-
missioner’s motion for an order of temporary custody.
The order was sustained following a hearing on October
25, 2012, with the agreement of the attorney for Santi-
ago, because neither of Santiago’s biological parents
had been identified by that time.4 On November 15,
2012, the trial court, Heller, J., adjudicated Santiago
neglected, on the basis of abandonment by his biologi-
cal parents, who still remained unknown, and ordered
him committed to the commissioner’s custody. After
removing Santiago to a temporary foster home in
November, 2012, the department placed him in a legal
risk preadoptive foster home in December, 2012, where
he remains today. At the time of this placement, the
department’s permanency plan for Santiago was termi-
nation of his biological parents’ rights and adoption by
the foster parents.
On December 6, 2012, counsel for the department
informed the trial court that Maria G. had provided him
with the respondent’s identity and that the department
was in the process of verifying that the respondent
was in fact Santiago’s biological mother.5 Counsel also
informed the court that Maria G. was facing federal
prosecution for immigration fraud and possible depor-
tation and/or incarceration. On February 28, 2013, the
respondent filed an appearance through counsel6 and
began participating in the case. She did not appeal from
the October 16, 2012 order of temporary custody or the
November 12, 2012 adjudication of neglect, at that time
or any time thereafter. DNA testing results subsequently
confirmed that the respondent was Santiago’s biological
mother and, on June 6, 2013, the trial court entered an
order adjudicating her to be the same.7
Initially, following Santiago’s removal and foster
home placement, Maria G. was permitted to visit him
weekly. After January 20, 2013, however, the visits were
discontinued unilaterally by the department.8 Following
the establishment of the respondent’s maternity, the
department sought to reinstate visitation, and it
changed its permanency plan to termination of the
respondent’s parental rights and placement of Santiago
with Maria G. The commissioner also reversed her ear-
lier opposition to Maria G. intervening in the case. See
footnote 4 of this opinion.
On June 5, 2013, however, the attorney for Santiago
filed emergency motions requesting that Santiago
receive a psychological evaluation, to appoint him a
guardian ad litem and to delay reunification visits with
Maria G. The attorney represented that Santiago had
‘‘expressed a strong desire not to visit with Maria G.
and not to be returned to her care,’’ and further quoted
from a May, 2013 department status report reflecting a
physician’s recommendation that Santiago’s foster
placement remain in place until the ‘‘legal situation’’
was clarified, because he had established a secure and
stable connection with his foster family and would be
affected adversely by further disruptions. The trial
court, Heller, J., granted all of these motions and, aside
from an August, 2013 interactional evaluation, there
was no further contact between Maria G. and Santiago
for the remainder of the proceedings.
The trial court appointed Rodolfo J. Rosado, a psy-
chologist, to conduct psychological and interactional
evaluations of Santiago and Maria G., which were com-
pleted on or about August 6, 2013. Rosado reported a
strong bond between Maria G. and Santiago. He recom-
mended that visitation recommence, and that Santiago
ultimately be returned to Maria G. On October 16, 2013,
the department filed a motion for visitation. The attor-
ney for Santiago continued to oppose visitation.
On October 22, 2013, the respondent filed her motion
to revoke Santiago’s commitment, requesting that he
be removed from the commissioner’s custody and trans-
ferred to Maria G.’s custody and guardianship. Therein,
the respondent cited the trial court’s finding that she
was Santiago’s biological parent, and her consistently
held desire that Maria G. be Santiago’s adoptive mother.
She further cited Rosado’s report of a remaining bond
between the two, his recommendation that they be
reunited, and the fact that there were no substantiated
reports of Maria G. physically abusing or neglecting
Santiago while he was in her care.
On December 20, 2013, the commissioner filed the
motion to open, requesting that the November 15, 2012
judgment that had adjudicated Santiago neglected be
set aside. According to the commissioner, that judgment
was ‘‘based on the mutual mistake of the parties that
the identity of [Santiago’s] biological parents was
unknown at the time of the commitment and that [Santi-
ago] had been a victim of human trafficking.’’ Also in
December, 2013, the trial court ordered David Mantell, a
licensed clinical psychologist, to perform psychological
and interactional evaluations of Santiago and his foster
family. Mantell recommended, contrary to Rosado’s rec-
ommendation, that Santiago remain with the foster fam-
ily because, in short, yet another disruption in his life
would be too traumatic.
II
TRIAL COURT PROCEEDINGS
A
The Trial
A trial on the motion to open the judgment filed by
the commissioner and the motion to revoke Santiago’s
commitment filed by the respondent was held on multi-
ple days between January 16 and April 22, 2014. Several
witnesses testified, including Saavedra and Maria Brere-
ton, a regional administrator for the department, Maria
G., Rosado, Mantell and Brian Kaschel, the guardian ad
litem appointed for Santiago. During the course of the
trial, the trial court learned that Maria G. had pleaded
guilty to a federal felony in connection with her bringing
Santiago into the country illegally with forged docu-
ments, and that she soon would be deported to Argen-
tina as part of her sentence.9
Saavedra and Brereton testified about the initial
removal of Santiago from Maria G.’s home, following
the department’s receipt of the report from Homeland
Security, and the contemporaneous filing of a neglect
petition. Both women testified that Maria G. initially
claimed that she was Santiago’s biological mother, but
after further questioning, changed her story to the one
recounted in the previously described affidavits. Saave-
dra testified that Maria G.’s story could not be verified,
nor could the allegations of human trafficking be dis-
proven, because the department had no information
regarding the identity of Santiago’s biological parents.
Brereton explained similarly that the respondent’s iden-
tity was not confirmed until June, 2013, and that the
initial removal was sought because the department had
information that Santiago ‘‘had entered the country ille-
gally, did not have a guardian [and] was a possible
victim of human trafficking . . . .’’ According to Brere-
ton, the ‘‘primary issue’’ was neglect due to the lack of a
guardian, but there also was concern about ‘‘the human
trafficking question.’’ There were no indications of
physical abuse. Brereton explained that eventually,
once the respondent’s maternity and intentions were
confirmed, department officials believed that a mistake
had been made and began attempts to return Santiago
to Maria G.
Maria G. relayed the story of how she and Henry L.
acquired custody of Santiago upon his birth in Guate-
mala, which was consistent with that recounted in the
previously described affidavits. She testified, inter alia,
that prior to Santiago’s birth, she and Henry L. had
consulted two attorneys in Guatemala, who told them
that they could not adopt the baby because all adoptions
in the country ‘‘were closed’’ at the time and because the
respondent, who then was a fourteen year old orphan,
lacked personal documentation. Maria G. explained that
she and Henry L. then paid for the baby to be delivered
in a clinic, because if he had been born in a hospital,
he would have been turned over to an orphanage. Maria
G. insisted that they did not pay anything to the respon-
dent and encouraged her, or her older sister, to keep
the baby, but that the respondent was desperate, desti-
tute and adamant that they take him. She recounted
how they subsequently obtained a false document from
a midwife indicating that she had given birth to Santiago
and used it to obtain a birth certificate and a Guatema-
lan passport for Santiago, but then discovered that
those documents would not enable them to return to the
United States with Santiago unless she could provide
evidence of his prenatal history. Thereafter, Maria G.
indicated, Henry L. returned to the United States, and
she was introduced to a man in Guatemala who sold
her a forged American passport for Santiago. Ulti-
mately, Maria G. also returned to the United States,
using that fraudulent passport to bring Santiago with
her. Maria G. and Henry L. then consulted two more
attorneys, who advised them that Santiago’s illegal sta-
tus could not be remedied and that they could not legally
adopt him, at least in part because of the existence
of the falsified birth certificate. The three thereafter
resided in Connecticut without legal trouble until the
commencement of the events underlying this appeal.
Rosado and Mantell testified consistently with the
opinions they had expressed in their earlier written
reports. In short, both agreed that Santiago had experi-
enced much trauma due to the disruptions in his life
that already had occurred, namely, the unexplained
departure of Henry L.; see footnote 1 of this opinion;
his removal from Maria G.’s home, and his initial place-
ment in a different foster home prior to his placement
with his current foster family. They also agreed that
Santiago likely would have psychological issues in the
future due to these occurrences. The experts disagreed,
however, as to what course of action would lead to the
least future trauma, with Rosado recommending that
Santiago be returned, after a transition period, to Maria
G., and Mantell opining that Santiago would be better
off remaining with his current foster family. Kaschel
testified as to his opinion that, although Maria G. was
a suitable and worthy guardian, it would not be in Santi-
ago’s best interests to be placed with her. Kaschel also
was concerned with, among other things, the implica-
tions of Maria G.’s impending deportation to Argentina.
On April 22, 2014, the trial court, Mottolese, J., denied
the commissioner’s motion to open the judgment and
the respondent’s motion to revoke Santiago’s commit-
ment, and disapproved the department’s permanency
plan of placing Santiago with Maria G. Regarding the
motion to revoke, the court first found that the grounds
for Santiago’s commitment no longer existed. It there-
after concluded that revocation of the commitment was
not in Santiago’s best interests, essentially agreeing
with Mantell that the trauma that would result from
disrupting his placement yet again and returning him to
Maria G. would be greater than that which he potentially
might suffer in the future were the status quo left in
place, given what already had occurred. The court found
that any attachment Santiago still had to Maria G. would
diminish and that he was thriving with his foster family
and would continue to do so. In sum, the trial court
concluded, it would be in Santiago’s best interest to
remain with his foster family, and contrary to his best
interest to be returned to Maria G.10
B
Posttrial Motions
On April 28, 2014, the commissioner filed a motion
for reconsideration of the trial court’s decision, arguing
that delay in the trial and the failure to afford Maria G.
visitation with Santiago in the interim had impacted
adversely her chances at gaining custody. The commis-
sioner argued further that the court improperly had
failed to grant her December 20, 2013 motion to open
based on the mutual mistake of the parties, specifically,
the parties’ belief that the identities of Santiago’s biolog-
ical parents were unknown and could not be ascer-
tained, and that Santiago had been a victim of human
trafficking. She noted that, subsequent to the order of
temporary custody and the neglect adjudication, the
department was able to verify the respondent’s identity
and confirm her desire that Maria G. have custody of
Santiago. According to the commissioner, the respon-
dent’s wishes as to who should have custody of her
son should have ‘‘weighed heavily’’ in the earlier pro-
ceedings, but were not due to the mutual mistake. The
commissioner implored the court to ‘‘act now to correct
[the order of temporary custody and neglect adjudica-
tion] because those judgments were based on mis-
taken facts.’’
Judge Mottolese granted the commissioner’s motion
for reconsideration, but denied the relief requested
therein. He questioned whether there had been any
mutual mistake and concluded, in any event, that the
best interests of Santiago were paramount. Judge Mot-
tolese explained that initially, he had disagreed strongly
with Santiago’s removal from Maria G.’s home, particu-
larly because two other trial judges had denied the
commissioner’s requests for an order of temporary cus-
tody, but that ‘‘the facts [that] came out in the trial
certainly prevailed over [his] initial emotional reaction
to the case.’’ The respondent’s appeal to the Appellate
Court followed.
III
APPELLATE COURT PROCEEDINGS
In the Appellate Court, the respondent claimed, inter
alia, that the trial court improperly had considered San-
tiago’s best interests, pursuant to General Statutes
§ 46b-129 (m),11 because the original cause for his com-
mitment to the commissioner had never existed.12 In
re Santiago G., supra, 154 Conn. App. 845–46. The
Appellate Court, relying on its recent opinion in In re
Avirex R., 151 Conn. App. 820, 96 A.3d 662 (2014),
concluded that the trial court improperly had decided
the respondent’s motion to revoke Santiago’s commit-
ment by applying § 46b-129 (m) instead of § 46b-129 (j),
because the respondent had sought to transfer guard-
ianship of Santiago to a party who was not his parent
or former legal guardian, making the latter subsection
the applicable one. In re Santiago G., supra, 846–50.
The Appellate Court determined, however, that the trial
court properly had considered Santiago’s best interests,
because that was what application of § 46b-129 (j)
would have required. Id., 851. In short, the Appellate
Court held, the trial court had committed harmless
error. Id.
We thereafter granted the respondent’s petition for
certification to appeal,13 limited to the following ques-
tions: (1) ‘‘Did the Appellate Court properly affirm the
judgment of the trial court denying the [respondent’s]
motion to revoke commitment [when] both the respon-
dent . . . and the [department] agree[d] that the initial
basis for the state’s removal of the child from his home
was found never to have existed?’’ and (2) ‘‘Did the
Appellate Court properly affirm the trial court’s judg-
ment denying the [commissioner’s] motion to [open]
due to a mistake, in favor of a best interest determina-
tion regarding the child’s current placement?’’ In re
Santiago G., 315 Conn. 926, 926–27, 109 A.3d 921 (2015).
IV
THE PRESENT APPEAL
A
The Parties’ Claims
The respondent claims that the Appellate Court
improperly affirmed the judgment of the trial court
denying her motion to revoke Santiago’s commitment
because, regardless of whether the issue is analyzed
under subsection (j) or (m) of § 46b-129, the court
lacked the authority to deny the motion on the basis
of Santiago’s best interests when the only factual basis
for his removal from Maria G.’s home and commitment
to the commissioner’s custody later was determined to
be mistaken. According to the respondent, both of those
subsections necessarily contemplate that a proper
cause for removal existed in the first instance, and here,
it has been definitively disproven that Santiago was a
victim of human trafficking. The respondent contends
that Santiago improperly was removed from Maria G.’s
custody solely due to concerns about his immigration
status, and she emphasizes that there never was any
evidence of any victimization, abuse or physical neglect.
The commissioner agrees with the respondent that
the factual basis for Santiago’s removal was mistaken,
because ultimately it was determined that Maria G. had
not engaged in human trafficking, and she contends that
the trial court improperly failed to afford appropriate
significance to this fact by denying the respondent’s
motion to revoke on the basis of Santiago’s best inter-
ests. According to the commissioner, the unusual facts
and procedural posture of this case made a typical
application of the statutory standard improper, and that
instead, some other procedure should have been
employed to rectify the mistakes that were made and
to return Santiago to Maria G.’s custody.
The attorney for Santiago opposes the reversal of
the Appellate Court’s judgment, and contends that that
court properly affirmed the trial court’s denial of the
respondent’s motion to revoke the commitment.
According to Santiago’s attorney, the respondent’s
claim amounts to an improper collateral attack on the
order of temporary custody and the neglect adjudica-
tion, decisions from which she did not appeal. He
emphasizes that Maria G. is not Santiago’s biological
or legal parent, and therefore lacks any constitutionally
protected right to parent him that the trial court should
have considered but did not.
We disagree with the factual premise of the respon-
dent’s legal argument that § 46b-129 (m) is inapplicable
where the initial cause for commitment never existed,
because it is clear from the record before us that the
bases set forth by the commissioner in support of her
motion for an order of temporary custody and the
neglect petition did, in fact, exist. We conclude, there-
fore, that the trial court properly proceeded pursuant
to § 46b-129 (m) and engaged in a best interests analysis
prior to denying the respondent’s motion to revoke.14
B
Analysis
We begin with the standard of review. The respondent
challenges the meaning and/or applicability of § 46b-
129 (m) given the facts of this case, which essentially
are not disputed. The meaning of a statute, and the
question of whether it applies to a given factual sce-
nario, are matters of statutory interpretation, over
which our review is plenary. Efstathiadis v. Holder,
317 Conn. 482, 486, A.3d (2015).
We turn to the relevant governing legal principles.
The commissioner may seek and obtain the commit-
ment of a child or youth to her custody by filing ‘‘a
verified petition plainly stating [inter alia] such facts as
bring the child or youth within the jurisdiction of the
court as neglected, uncared for or abused within the
meaning of section 46b-120 . . . .’’ General Statutes
§ 46b-129 (a). If it appears from the specific allegations
of the petition and accompanying affidavits ‘‘that there
is reasonable cause to believe that (1) the child or youth
is . . . in immediate physical danger from the child’s
or youth’s surroundings, and (2) as a result of said
conditions, the child’s or youth’s safety is endangered
and immediate removal from such surroundings is nec-
essary to ensure the child’s or youth’s safety, the court
shall either (A) [order the child’s] parents or other
[guardian] to appear [for a determination regarding tem-
porary custody], pending disposition of the petition, or
(B) issue an order ex parte vesting the child’s or youth’s
temporary care and custody in [a relative] or in some
other person or suitable agency.’’ General Statutes
§ 46b-129 (b).
‘‘Upon finding and adjudging that any child or youth
is uncared for, neglected or abused the court may (A)
commit such child or youth to the [commissioner], and
such commitment shall remain in effect until further
order of the court, except that such commitment may
be revoked or parental rights terminated at any time by
the court . . . .’’ General Statutes § 46b-129 (j) (2) (A)
Section 46b-129 (m) provides in relevant part that
‘‘[t]he commissioner, a parent or the child’s attorney
may file a motion to revoke a commitment, and, upon
finding that cause for commitment no longer exists,
and that such revocation is in the best interests of such
child or youth, the court may revoke the commitment
of such child or youth. . . .’’ Our rules of practice pro-
vide further that ‘‘[w]hether to revoke the commitment
is a dispositional question, based on the prior adjudica-
tion [here, of neglect], and the judicial authority shall
determine whether to revoke the commitment upon a
fair preponderance of the evidence. The party seeking
revocation of commitment has the burden of proof that
no cause for commitment exists. If the burden is met,
the party opposing the revocation has the burden of
proof that revocation would not be in the best interests
of the child.’’ Practice Book § 35a-14A; see also In re
Shanaira C., 297 Conn. 737, 758–59, 1 A.3d 5 (2010).
Pursuant to § 46b-129 (j) (2), a trial court, ‘‘prior to
awarding custody of [a] child to the department pursu-
ant to an order of commitment . . . must both find
and adjudicate the child on one of three [statutorily
defined] grounds: uncared for, neglected or [abused].’’
(Emphasis in original.) In re Alison G., 276 Conn. 146,
159, 883 A.2d 1226 (2005). Adjudication on any of these
grounds requires factual support, and ‘‘[t]he trial court’s
determination thereafter as to whether to maintain or
revoke the commitment is largely premised on that prior
adjudication.’’ Id., 160. Accordingly, ‘‘[t]he court, in
determining whether cause for commitment no longer
exists . . . look[s] to the original cause for commit-
ment to see whether the conduct or circumstances that
resulted in commitment continue to exist.’’ (Internal
quotation marks omitted.) Id.In the present matter, the trial court, Heller, J., found
that there was reasonable cause to believe that Santiago
was in immediate physical danger and issued an order
of temporary custody in reliance on the affidavits of
Saavedra and Aarons. Those affidavits emphasized that
the child lacked a legal guardian in the United States,
given that the identities of his biological parents were
unknown, and also that Maria G. was being investigated
by federal authorities for possible child trafficking and
was facing deportation and criminal sanctions for smug-
gling Santiago into the country. Moreover, the affidavits
explained, due to the recent intervention of state and
federal authorities into her life, Maria G. was aware of
these facts, which gave her a strong incentive to flee
with Santiago. Subsequently, Judge Heller, presumably
relying on the same affidavits, adjudicated Santiago
neglected on the basis of abandonment by the respon-
dent. See General Statutes § 46b-120 (6) (A) (defining
neglected child as one who, inter alia, ‘‘has been aban-
doned’’).15 We disagree with the commissioner and the
respondent that the cited factual bases for the court’s
rulings were mistaken or that they never existed.
At the outset, we must emphasize that the issue
before the trial court was whether Santiago had been
abandoned by his biological mother, the respondent in
this case, and not by Maria G. In Connecticut, the num-
ber of ways to create a legal parent-child relationship
is limited and exclusive: by conception or through legal
adoption, or pursuant to our statutes governing artificial
insemination or valid gestational agreements. Raftopol
v. Ramey, 299 Conn. 681, 690–94, 698, 12 A.3d 783(2011). An examination of Maria G.’s account of how
she and Henry L. had acquired Santiago in Guatemala, as
reflected in the social workers’ affidavits and ultimately
verified to be true, clearly demonstrates that, at the
time of Santiago’s removal, none of these paths to legal
parenthood, for Maria G., had been satisfied. Addition-
ally, although Maria G. was in possession of a birth
certificate naming her as Santiago’s mother, she ulti-
mately conceded that that birth certificate was fraudu-
lent. 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.’’ Id., 698. In sum,
it was absolutely correct that Santiago had no legal
guardian in the United States, and neither the parties
nor the court was mistaken in this regard.
The other facts attested to by department representa-
tives were equally true. At the time of the order of
temporary custody and neglect adjudication, the identi-
ties of Santiago’s biological parents were unknown, and
the respondent was not identified to the court until
approximately three weeks after the neglect adjudica-
tion was rendered, did not appear in the case for another
three months and was not confirmed to be Santiago’s
biological mother for another six months. In addition,
Maria G. was being investigated for child trafficking,
as indicated by Homeland Security’s report to the
department. Finally, she did face deportation and crimi-
nal sanctions for smuggling Santiago into the country,
as amply demonstrated by the fact that she later pleaded
guilty to a federal felony and is awaiting deportation
to Argentina.
The grounds on which the trial court relied for the
adjudication of neglect also existed and were not, as
the respondent and the commissioner now insist, mis-
taken or untrue. For purposes of termination proceed-
ings, ‘‘abandonment’’ has been defined as a parent’s
‘‘fail[ure] to maintain a reasonable degree of interest,
concern or responsibility as to the welfare of the child
. . . .’’ General Statutes § 17a-112 (j) (3) (A). ‘‘Maintain
[as used in the statute] implies a continuing, reasonable
degree’’ of interest, concern, or responsibility and not
merely a ‘‘sporadic showing’’ thereof. (Internal quota-
tion marks omitted.) In re Paul M., 148 Conn. App. 654,
664, 85 A.3d 1263, cert. denied, 311 Conn. 938, 88 A.3d
550 (2014). Although the respondent ultimately
appeared in the proceedings in February, 2013, and
actively advocated for what she perceived to be the
most desirable outcome for Santiago, her relin-
quishment of the child just after his birth to Maria G.
and Henry L. in April, 2009, even if motivated by good
intentions, undoubtedly constituted abandonment.
Importantly, there is no indication in the record that the
respondent and Maria G., who had met shortly before
Santiago’s birth and parted ways approximately two
weeks after he was born, had maintained any type of
contact or correspondence prior to the events underly-
ing this appeal. Rather, when questioned by investiga-
tors, Maria G. was unsure of the respondent’s name,
and was not able to provide it to the court until almost
two months after Santiago’s removal from her home.
Additionally, the respondent has never sought to regain
custody of Santiago, but contends only that he should
be returned to Maria G.
Ultimately, a complete investigation, which included
locating and contacting the respondent and having her
submit to DNA testing, revealed that Maria G.’s account
of how Santiago came to be in her care and custody
was true. That circumstance, however, does not render
false the essential facts that supported the trial court’s
custodial orders, as recited herein. Although the respon-
dent and the commissioner now attempt to characterize
the sole basis of the removal as the department’s abso-
lute belief that Santiago had been a product of child
trafficking, rather than smuggled into the country fol-
lowing an illegal adoption, that characterization is not
borne out by the record. In fact, the commissioner, in
seeking an order of temporary custody and adjudication
of neglect, relied heavily on allegations related to the
lack of a legal guardian in this country who could make
essential decisions on behalf of Santiago.
It is entirely understandable that, with the benefit of
hindsight and full, accurate and verified information at
their disposal, department officials came to regret the
manner in which they chose to exercise the discretion
with which they are vested in the execution of their
agency duties. This is especially so given the unfortu-
nate and unpredictable manner in which the proceed-
ings played out, in particular the delay in the trial and
the contemporaneous denial of visitation between
Maria G. and Santiago, which initially resulted from the
unilateral decision of the department but thereafter was
continued at the behest of the attorney for Santiago and
allowed by the court. Nevertheless, that the department
eventually came to view its initial decisions to pursue
removal and custody as unnecessary, and perhaps ill
considered, does not render those decisions without a
factual basis.
As a final matter, we must reject the suggestion of
the parties that the highly unusual facts of this case
warranted a disregard of the typical procedures atten-
dant to a motion to revoke commitment, in favor of
some alternative approach more suited to the circum-
stances. The problem here is not so much that the
statutory framework is inadequate, but that it was not
designed to accommodate individuals who have chosen
to operate outside of the strictures of the law, regardless
of their reasons. It was because the respondent and
Maria G. knowingly agreed to effectuate an illegal inter-
national adoption that Maria G. was vulnerable to the
cruel act of a vindictive individual; see footnote 2 of
this opinion; and all of the subsequent occurrences that
that act set in motion. Because Maria G. lacked the
status of a legal parent, she also lacked the constitu-
tional and statutory rights attendant to that status. Addi-
tionally, the illegalities involved in Maria G. obtaining
Santiago and transporting him, using a fraudulent pass-
port, to the United States resulted in significant delay
in the discernment of the truth, during which the inter-
ests of Santiago in stability and permanency16 began to
diverge, as it turns out inexorably, from the interests
of the respondent and Maria G. We say this not to
chastise or lay blame, but rather, to explain that the
law is ill equipped to save those who have chosen to
disregard it.17
The respondent’s second claim, that the Appellate
Court improperly affirmed the trial court’s decision
denying the commissioner’s motion to open the judg-
ment, also rests on the premise that the earlier adjudica-
tion of neglect was based on a factual mistake. Because
we disagree with that premise, the second claim neces-
sarily fails.
The judgment is affirmed.
In this opinion the other justices concurred.
* 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.
** August 21, 2015, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Maria G. testified that she and Henry L. separated in February, 2012.
Henry L. ceased visiting Santiago in March, 2012, and did not seek any
further contact with the child.
2
The report of Homeland Security resulted from a tip that that department
had received from a family friend and former tenant of Maria G. According
to Maria G., the tenant contacted Homeland Security after she refused his
sexual advances and directed him to move out of her house.
3
The report also stated that Maria G. had been observed being physically
aggressive with Santiago. This allegation was never substantiated.
4
Maria G. attempted to participate in the October 25, 2012 hearing by
presenting, through her counsel, the falsified Guatemalan birth certificate.
When counsel for the department asked her whether she was Santiago’s
biological mother, her counsel instructed her to invoke the fifth amendment
privilege against self-incrimination. On November 20, 2012, Maria G. filed
a motion to intervene in the proceedings. A ruling on the motion was deferred
so that an intervenor study could be completed, and ultimately, the motion
was denied by the trial court. See Practice Book § 35a-4 (c).
5
Counsel for the department expressed some skepticism about the accu-
racy of the information provided by Maria G., given that she previously had
admitted to obtaining a fraudulent passport and had attempted to appear
as a party in court using the falsified Guatemalan birth certificate. He ques-
tioned whether the respondent could be ‘‘a conspirator of [Maria G.] or
[alternatively] could be the innocent mother whose child was taken.’’ For
that reason, the department wanted definitive proof of the respondent’s
maternity.
6
Although the respondent has remained in Guatemala throughout the
entirety of these proceedings and never has been physically present in court,
she repeatedly has communicated with her counsel and the department in
written communications and via e-mail.
7
Although a putative father was identified, his status as Santiago’s biologi-
cal parent has not been definitively established. On January 24, 2013, the
trial court rendered a default judgment against him for failing to appear in
the proceedings following service by publication.
8
The record reveals several reasons that visitation was terminated by the
department and, thereafter, not resumed. First, at the last visit between
Maria G. and Santiago, Maria G. became agitated, yelled and grabbed a
social worker, causing Santiago to react negatively. Second, approximately
two weeks prior to that visit, the department received a report that Maria
G. had pushed a neighbor down a flight of stairs; that neighbor apparently
was the daughter of the individual who had reported Maria G. to Homeland
Security. See footnote 2 of this opinion. Third, an initial psychiatric evalua-
tion of Santiago had included a recommendation against visitation. Fourth,
Maria G. did not have intervenor status. Fifth, Santiago was not asking to
see Maria G. Sixth, Santiago was not showing any adverse effects from the
lack of visitation and previously had been disruptive in his foster home
following visits with Maria G.
9
On April 22, 2014, the trial court was informed that Maria G. would be
sentenced on May 2, 2014.
10
In considering Santiago’s best interests, the trial court also addressed
the likely effectiveness of any reunification with Maria G., noting that there
were only three to four weeks in which to achieve such reunification before
Maria G. was scheduled for possible deportation. In the court’s view, an
accelerated reunification plan involving immediate visitation was ‘‘unrealis-
tic, and counterproductive, and [would] be harmful to the child.’’ Moreover,
even assuming that a move to Argentina would go smoothly for Santiago,
the court concluded that it was unclear what level of psychological and
therapeutic assistance was available for him there.
On May 6, 2014, the commissioner filed a motion to open the April 22,
2014 judgment on the basis of newly discovered evidence, namely, the
department’s having learned that the respondent’s federal sentencing had
been continued to August, 2014. The respondent joined in the commissioner’s
motion to open. On May 27, 2014, the trial court denied the motion to open,
explaining that the evidence produced would not change the result of its
original ruling, which was based primarily on Santiago’s best interest and
only secondarily on Maria G.’s deportation status. Although the respondent
challenged this ruling in the proceedings before the Appellate Court, it is
not part of the present appeal.
11
General Statutes § 46b-129 (m) provides: ‘‘The commissioner, a parent
or the child’s attorney may file a motion to revoke a commitment, and,
upon finding that cause for commitment no longer exists, and that such
revocation is in the best interests of such child or youth, the court may
revoke the commitment of such child or youth. No such motion shall be
filed more often than once every six months.’’ (Emphasis added.)
12
The respondent further contested the trial court’s best interests finding
as clearly erroneous; In re Santiago G., supra, 154 Conn. App. 851; and
contended that the court improperly had denied the motion to open on the
basis of newly discovered evidence. Id., 858. The Appellate Court disagreed
with each of these claims; id., 857–58, 860; and they are not a part of the
present appeal.
13
The department’s cross petition for certification to appeal from the
judgment of the Appellate Court was denied. In re Santiago G., 315 Conn.
927, 109 A.3d 922 (2015).
14
It is well established that a court is not bound by the agreement of the
parties as to a matter in issue. See, e.g., Constantino v. Skolnick, 294 Conn.
719, 730–32, 988 A.2d 257 (2010). Moreover, despite the respondent’s asser-
tion otherwise, the attorney for Santiago has not conceded that the basis
for Santiago’s removal was mistaken. Finally, it is clear that we may affirm
the judgment of the Appellate Court on the basis of different reasoning. See
State v. Dort, 315 Conn. 151, 155, 106 A.3d 277 (2015). In this regard, we
agree with the respondent that a transfer of Santiago’s guardianship pursuant
to § 46b-129 (j) necessarily would have entailed a revocation of his custody
to the commissioner pursuant to § 46b-129 (m), thereby rendering inconse-
quential the distinction drawn by the Appellate Court.
15
Pursuant to our child protection statutes, neglect on the basis of aban-
donment is distinct from neglect based on: ‘‘deni[al] [of] proper care and
attention, physically, educationally, emotionally or morally’’; General Stat-
utes § 46b-120 (6) (B); ‘‘permitt[ing] [a child or youth] to live under condi-
tions, circumstances or associations injurious to [his or her] well-being’’;
General Statutes § 46b-120 (6) (C); or abuse. General Statutes § 46b-120 (7).
Thus, although we agree with the respondent that there is absolutely no
indication that Maria G. was abusing Santiago or denying him physical or
emotional care, we disagree that that circumstance foreclosed an adjudica-
tion of neglect.
16
The trial court, Mottolese, J., relying on the testimony of an expert
psychiatric evaluator and a guardian ad litum, concluded that it was in five
year old Santiago’s best interests to remain with the foster family with whom
he had bonded strongly after living in their home as a son and brother for
approximately eighteen months. More than one year has passed since the
making of that determination, which thereafter was upheld by the Appellate
Court. See In re Santiago G., supra, 154 Conn. App. 861.
17
It is well recognized that courts will not lend their assistance to enforce
agreements whose inherent purpose is to violate the law; Parente v. Piroz-
zoli, 87 Conn. App. 235, 246, 866 A.2d 629 (2005); even to reach what appears
to be an equitable result. Id., 250. ‘‘Generally, agreements contrary to public
policy, that is, those that negate laws enacted for the common good, are
illegal and therefore unenforceable.’’ (Internal quotation marks omitted.)
Id., 246.
The process of international adoption is highly regulated under federal
law. See 42 U.S.C. § 14901 et seq. A major purpose of such regulation is ‘‘to
protect the rights of, and prevent abuses against, children, birth families,
and adoptive parents involved in adoptions (or prospective adoptions) . . .
and to ensure that such adoptions are in the children’s best interests . . . .’’
42 U.S.C. § 14901 (b) (2). Maria G. and the respondent knowingly agreed
to engage in a subterfuge to evade the strictures of these adoption laws
and achieve more expeditiously their own goals, albeit admirable ones. For
the trial court, or this court, to somehow fashion a special rule to respect
their wishes as to who should be Santiago’s mother would amount to the
enforcement of an illegal agreement, contrary to the public policies underly-
ing the adoption laws of both this country and of Guatemala. Parente v.
Pirozzoli, supra, 87 Conn. App. 250. In addition, we agree with the trial
court that the trauma that already has been inflicted upon Santiago, through
no fault of his own, is unlikely to be remedied by the imposition of yet
another traumatic separation from those whom he has grown to love and
trust since his removal from Maria G.’s household in October, 2012.