In re Zoey H. , 183 Conn. App. 327 ( 2018 )

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IN RE ZOEY H.*
(AC 41157)
Elgo, Bright and Mihalakos, Js.
Syllabus
The respondent father appealed to this court from the judgment of the
trial court denying his motion to revoke the commitment of his minor
daughter to the custody and care of the petitioner, the Commissioner
of Children and Families. The father claimed, inter alia, that the trial
court improperly failed to hold a hearing to determine his fitness as a
parent before infringing on his right to the custody and care of his child.
The commissioner, who had been granted an ex parte order of temporary
custody shortly after the child was born, had filed a petition alleging
that the child was uncared for. The trial court found that the child had
been uncared for and committed her to the custody of the commissioner.
The man whom the child’s mother had identified as the father in that
proceeding later was determined not to be the father and was dismissed
from the case. The respondent father thereafter was cited into the case
and, after genetic testing, was determined to be the child’s biological
father. The trial court denied the father’s first motion to revoke commit-
ment, from which he did not appeal. After the court issued certain
specific steps to the father to aid with his reunification with the child,
the father filed a second motion to revoke commitment, which the court
also denied, concluding that his failure to comply with the specific steps
impacted his ability to meet the child’s needs and to keep her safe. The
court conducted hearings on both motions in which the father was
accorded the opportunity to present evidence regarding his fitness to
take custody of the child. Held:
1. The respondent father could not prevail on his unpreserved claim that
the trial court violated his right to procedural due process when it denied
his motion to revoke the commitment of the child to the commissioner
without first conducting a hearing to determine his fitness as a parent;
the procedures set forth in the statute (§ 46b-129 [m]) and rule of practice
(§ 35a-14A) pertaining to the revocation of the commitment of a minor
child, pursuant to which the moving party bears the burden of proving
that a cause for commitment no longer exists, and if the movant is
successful, the court must determine whether revocation of commitment
is in the best interest of the child, strike the appropriate balance between
the commissioner’s and the father’s interests, and comply with proce-
dural due process requirements, and the procedural requirement advo-
cated by the father, namely, that an adjudicative hearing be held in
which the father would be presumed to be a fit parent and would
automatically obtain custody of the child unless the commissioner could
establish otherwise was inappropriate, unwarranted and ill-advised
under the circumstances here, as the child previously had been adjudi-
cated uncared for and committed to the custody of the commissioner,
who has a substantial interest in ensuring the well-being of children
placed in her custody, and the father’s desire to take custody of and
care for the child did not justify the creation of a process that would
require the court to turn over a child to a person who did not know
anything about the child or her needs.
2. The respondent father’s unpreserved claim that, as applied, the statute
(§ 46b-129 [m]) governing the revocation of a minor child’s commitment
infringed on his right to substantive due process was unavailing; the
trial court, in applying the burden to the father to prove that a cause
for commitment no longer existed, in response to his motion to revoke
commitment, properly applied the law and did not violate the father’s
right to substantive due process, as he was not entitled to a presumption
of fitness after the child had been adjudicated uncared for and committed
to the custody of the commissioner, there was a compelling reason to
protect the child from harm given that she was uncared for when she
was merely days old, the court was not required to presume that the
father was a fit parent who was acting in the child’s best interest where,
as here, his motion to revoke commitment had been filed nearly two
years after the adjudication and commitment of the child to the commis-
sioner, and although, at the time of that adjudication, another man was
alleged to have been the child’s father and the respondent father was
not a party to that case, that did not change the fact that the child had
been adjudicated to be uncared for and was in need of the commission-
er’s protection and intervention.
Argued May 21—officially released July 11, 2018**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to adjudicate the minor child of the respondent
mother and the putative father uncared for, brought to
the Superior Court in the judicial district of New Haven,
Juvenile Matters, and tried to the court, Mosley, J.;
judgment adjudicating the minor child uncared for and
committing the minor child to the custody of the peti-
tioner; thereafter, the court, Conway, J., dismissed the
action as to the putative father; subsequently, the court,
Marcus, J., granted the motion filed by Jonathan S. to
be cited in as the respondent biological father of the
minor child; thereafter, the court, Marcus, J., denied
the respondent father’s motions to revoke commitment,
and the respondent father appealed to this court.
Affirmed.
Benjamin M. Wattenmaker, assigned counsel, for the
appellant (respondent father).
Evan O’Roark, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Opinion
BRIGHT, J. The respondent father, Jonathan S.,
appeals from the judgment of the trial court denying
his motion to revoke the commitment of his minor
daughter, Zoey H., to the petitioner, the Commissioner
of Children and Families.1 The respondent claims that
(1) his right to procedural due process under the United
States constitution was violated by the court’s failure
to hold a hearing to determine his fitness as a parent
before depriving him of the custody and care of his
child, and (2) as applied, General Statutes § 46b-129
(m) violates his right to substantive due process under
the United States constitution and improperly assigns
the burden of proof to him. We affirm the judgment of
the trial court.
The following factual findings, which are not chal-
lenged, and procedural history are relevant to our con-
sideration of the issues raised on appeal. Zoey was born
on May 9, 2015. Because her mother, M, was homeless
and exhibited behavior that raised concerns about her
ability to care for Zoey,2 the petitioner sought and was
granted an ex parte order of temporary custody, thereby
removing Zoey from M’s custody. Zoey was placed in
a nonrelative foster home, where she remained up to
and through the hearing that resulted in the judgment
at issue in this appeal. On September 23, 2015, following
a hearing, and with M’s admission, the court adjudicated
Zoey to be uncared for and committed Zoey to the
custody of the petitioner. The man that M identified as
Zoey’s father, who appeared at the hearing, stood silent
with respect to the adjudication. Thereafter, genetic
testing established that he was not Zoey’s biological
father, and on October 13, 2015, he was dismissed from
the case. After Zoey’s commitment, M engaged in some
sporadic mental health services, but soon stopped tak-
ing advantage of such services and began to deny the
need for further treatment. In March, 2016, the respon-
dent came forward and moved to be cited into the case,
asserting that he was Zoey’s actual father; the court
added him as a party. Genetic testing confirmed that
the respondent was Zoey’s biological father, and, on
May 19, 2016, the court adjudicated him as such.
On May 6, 2016, before the results of genetic testing
were submitted to the court, the respondent filed a
motion to revoke Zoey’s commitment to the petitioner.
The motion was supported by M, who did not seek
revocation and custody herself. The petitioner filed an
objection to the respondent’s motion to revoke commit-
ment. The court scheduled a review of the matter for
June 20, 2016, at which time the respondent was pre-
sented with specific steps that had been drafted by the
Department of Children and Families (department) to
aid with his reunification with Zoey. The respondent
refused to sign the specific steps after objecting to some
of them, including undergoing a substance abuse evalu-
ation and a mental health evaluation. Nevertheless, the
respondent did agree to visits with Zoey, supervised by
All Pointe, LLC, and he agreed to attend psychotherapy
at the Yale Child Study Center. The court, over the
respondent’s objection, accepted all of the specific
steps recommended by the department and, on June
20, 2016, made them orders of the court.
On July 14, 2016, the court held a hearing on the
respondent’s motion to revoke commitment.3 After con-
sidering the evidence presented and the arguments
advanced, the court denied the respondent’s motion.
The court commended the respondent for coming for-
ward and for being proactive. It held, however, that the
respondent had failed to put forth a prima facie case
that would permit the court to revoke Zoey’s commit-
ment. The court explained that it would not be in Zoey’s
best interest for her commitment to be revoked, but
that with psychotherapy to assist the respondent with
recognizing Zoey’s particular needs, and some assis-
tance with creating a better bond with Zoey, the respon-
dent, after continued supervised visitation and
psychotherapy sessions, might be successful in reunifi-
cation. The respondent did not appeal from that July
14, 2016 judgment.
Instead, the respondent continued to engage in super-
vised visitation with Zoey and actually began some of
the services set forth in the specific steps ordered by the
court. In particular, in September, 2016, the respondent
attended his first appointment at the parent-child psy-
chotherapy program at the Yale Child Study Center.
The respondent was discharged from the program one
month later when he failed to attend his next scheduled
appointment and did not return calls or text messages
from the center. Similarly, the respondent attended the
first of ten parenting classes through All Pointe, LLC,
but never completed another class.
On June 8, 2017, nearly one year after the denial of
his first motion to revoke commitment, the respondent
filed a second motion to revoke commitment. The court
held a hearing on the motion on August 30, October 10
and October 26, 2017, at which the respondent argued
that he had done everything necessary to secure reunifi-
cation with Zoey. The petitioner argued that the respon-
dent had failed to comply with the specific steps that
the court had ordered, that he did not have a good
understanding of Zoey’s needs, that he did not have a
sufficient bond with her because he failed to attend
the parent-child therapy as ordered, and that he had
engaged in concerning behavior during some of his
visits with Zoey.
In a very thorough October 31, 2017 memorandum
of decision, the court found that the respondent failed
to comply with any of the court-ordered specific steps,
with the exception of supervised visitation. The court
also credited the respondent’s testimony that he would
not abide by any court orders until he obtained custody
of Zoey, and that he would ‘‘not participate in recom-
mended services that were ordered by [the] court in
order to meet Zoey’s needs prior to reunification.’’ The
court discussed the respondent’s unwillingness to heed
the recommendations of medical professionals, and it
concluded that the respondent ‘‘show[ed] a lack of
regard for Zoey’s needs . . . putting his need to be sole
decision maker regarding Zoey’s diet . . . before
Zoey’s health.’’ The court further found that the respon-
dent was unwilling to communicate with Zoey’s foster
parents because, in the words of the respondent, ‘‘they
come from two different worlds and have nothing in
common. They have a nanny and he does not. He further
stated that there is nothing they can tell him about his
own child.’’
The court also discussed the respondent’s inability
to recognize safety issues concerning Zoey. It com-
mented on the respondent’s testimony that, despite M’s
unaddressed mental health issues, he would permit her
to visit with Zoey whenever she wanted to visit. The
court also commented on the respondent’s aggression
and outbursts at the Boys and Girls Village, which
caused Zoey to exhibit fear during several visits that
were conducted there. The court credited the testimony
of a department social worker, Renata Tecza, that the
reason the department was insisting that the respondent
undergo a mental health evaluation was because his
‘‘anger ‘rises to a different level,’ and this is a concern
for Zoey’s safety going forward.’’
On the basis of this and other evidence, the court
denied the respondent’s motion to revoke commitment,
finding that ‘‘the preponderance of the evidence shows
that the [respondent’s] failure to comply with his spe-
cific steps impacted his ability to meet Zoey’s needs
both medically and emotionally. This failure also has
had an impact upon his ability to keep her safe.’’ This
appeal followed. Additional facts will be set forth as
necessary.
I
The respondent claims that his right to procedural
due process under the United States constitution was
violated by the court’s failure to hold an adjudicative
hearing to determine his fitness as a parent before
infringing on his right to the custody and care of his
biological child. Insofar as this claim may not have been
preserved properly, he requests review pursuant to
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989). The petitioner argues that the respondent’s
claim is not only unpreserved, but that it is unreview-
able because the respondent is attempting to attack the
original judgment that adjudicated Zoey uncared for and
committed her to the petitioner’s custody. She contends
that the respondent did not request an adjudicative
hearing and that he should have filed a motion to open
the original judgment on the basis of mutual mistake
regarding paternity as soon as he was added as a party
to this case and determined to be Zoey’s biological
father. She argues: ‘‘He cannot now, after having twice
lost at trial on motions to revoke commitment, argue
that the original judgment was defective because he
didn’t have the opportunity to participate in the disposi-
tional hearing that led to Zoey . . . being committed.’’
We conclude that the respondent’s claim is reviewable
under Golding, but that the claim fails to satisfy Gold-
ing’s third prong because the court did not violate the
respondent’s right to procedural due process when it
denied his motion to revoke commitment.
Under Golding, ‘‘a [respondent] can prevail on a claim
of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
[respondent] of a fair trial; and (4) if subject to harmless
error analysis, the [petitioner] has failed to demonstrate
harmlessness of the alleged constitutional violation
beyond a reasonable doubt. In the absence of any one
of these conditions, the [respondent’s] claim will fail.’’
(Emphasis omitted; footnote omitted.) Id.; see In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)
(modifying third prong of Golding by eliminating
word ‘‘clearly’’).
The respondent’s claim meets the first two prongs
of Golding and, therefore, is reviewable. As to the first
prong, as is conceded in the petitioner’s appellate brief,
the record is clear that the respondent did not receive
the type of hearing to which he now claims he was
constitutionally entitled, a hearing in which the peti-
tioner would have the burden of proving that the respon-
dent was not fit to have custody of Zoey. As to the
second prong, the respondent is claiming a violation of
his procedural due process rights in the custody and
care of his biological child. We conclude, therefore, that
the claim is reviewable. We conclude, however, that
the respondent’s claim fails to satisfy the third prong
of Golding because the alleged constitutional violation
does not exist.
Whether the lack of an adjudicative hearing at which
the petitioner bore the burden of proving that the
respondent was unfit to have custody of Zoey deprived
the respondent of procedural due process is a question
of law as to which our review is plenary. See In re
Lukas K., 300 Conn. 463, 469, 14 A.3d 990 (2011); In re
Shaquanna M., 61 Conn. App. 592, 600, 767 A.2d 155
(2001). ‘‘The United States Supreme Court in Mathews
v. Eldridge, [424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed.
2d 18 (1976)], established a three part test to determine
whether the actions of the court violated a party’s right
to procedural due process. The three factors to be con-
sidered are (1) the private interest that will be affected
by the state action, (2) the risk of an erroneous depriva-
tion of such interest, given the existing procedures,
and the value of any additional or alternate procedural
safeguards, and (3) the government’s interest, including
the fiscal and administrative burdens attendant to
increased or substitute procedural requirements. . . .
Due process analysis requires balancing the govern-
ment’s interest in existing procedures against the risk
of erroneous deprivation of a private interest inherent
in those procedures.’’ (Internal quotation marks omit-
ted.) In re Lukas K., supra, 469.
The respondent primarily relies on a pre-Mathews
case, however, Stanley v. Illinois, 405 U.S. 645, 92 S.
Ct. 1208, 31 L. Ed. 2d 551 (1972), to support his argument
that ‘‘each biological parent is entitled to a fitness hear-
ing as a matter of procedural due process before the
state may infringe his or her fundamental right to the
custody of his or her child. In other words, where only
one parent is adjudicated to have neglected a child,
the state may not deprive the nonoffending parent of
custody without a hearing to adjudicate whether he or
she has neglected, abandoned, or abused a child . . . .
Because the [respondent] has not been provided with
such an adjudicatory hearing in this case, this court
should reverse the trial court’s order denying the
[respondent’s] motion for revocation and hold that he
is entitled to immediate custody of Zoey.’’ We address
Stanley first, and we conclude that it is inapposite.
In Stanley v. Illinois, supra, 405 U.S. 651, the plaintiff,
an unwed father who had ‘‘sired and raised’’ his chil-
dren, wanted to continue to raise them after their
mother had died, but the children, after a dependency
proceeding in accordance with Illinois law that pre-
sumed unwed fathers to be unfit parents, became wards
of the state. Id., 646. The United States Supreme Court
considered whether the Illinois statutory scheme,
which presumed unwed fathers, but not unwed moth-
ers, to be unfit to raise their children, violated the equal
protection clause of the fourteenth amendment to the
United States constitution. Id., 647. Under Illinois law,
the actual fitness of the unwed father was irrelevant.
Id. The court held: ‘‘[A]s a matter of due process of
law, [the plaintiff] was entitled to a hearing on his fitness
as a parent before his children were taken from him
and that, by denying him a hearing and extending it to
all other parents whose custody of their children is
challenged, the State denied [the plaintiff] the equal
protection of the laws guaranteed by the Fourteenth
Amendment.’’ Id., 649.
In the present case, the respondent was not known
to be Zoey’s biological father at the time the petitioner
filed her preliminary neglect petition, on May 15, 2015,
seeking temporary custody of Zoey, who was merely
days old, on the ground that she had been permitted
to live under conditions that were injurious to her well-
being. In fact, M had declared another man to be Zoey’s
father, and he was named in the case, although he
had not acknowledged paternity. At a later hearing on
September 23, 2015, the state amended the ground of
the petition to allege only that Zoey was uncared for
because M was homeless. M admitted that allegation,
while the putative father, who was incarcerated at the
time but did appear for the hearing, stated that he would
stand silent. The court then adjudicated Zoey uncared
for and ordered her committed to the care and custody
of the petitioner by agreement of the parties.
In contrast, in Stanley, the children had not been
adjudicated uncared for, abused, or neglected; they sim-
ply were made wards of the state because their father
had not been married to their mother at the time of
their mother’s death, despite the fact that he had ‘‘sired
and raised’’ the children; id., 651; and, despite the fact
that an unwed mother would not automatically have
been declared unfit if the father of the children had
died. Id., 646–47. The Supreme Court readily acknowl-
edged the importance of a state’s right and its duty to
protect uncared for or neglected children, but that was
not the issue of concern for the court in Stanley: ‘‘The
State’s right—indeed, duty—to protect minor children
through a judicial determination of their interests in a
neglect proceeding is not challenged here. Rather, we
are faced with a dependency statute that empowers
state officials to circumvent neglect proceedings on the
theory that an unwed father is not a ‘parent’ whose
existing relationship with his children must be consid-
ered.’’ Id., 649–50.
Although the respondent contends that, before the
state can remove children from their biological parents,
it first must afford those parents an adjudicatory fitness
hearing, in the present case, Zoey was adjudicated
uncared for by the Superior Court and committed to the
care and custody of the petitioner before the respondent
ever appeared and asserted that he was Zoey’s father;
indeed, a different man was purported to be her father,
and he appeared at the hearing on the petition. The
respondent’s later appearance in the case and the
results of his paternity test do not change the historical
fact that, at the time of her commitment, Zoey was
homeless and, therefore, uncared for within the mean-
ing of our child protection statutes,4 regardless of par-
entage.5 When the respondent filed his motion to revoke
commitment, the petitioner was the party who had cus-
tody of Zoey, and the respondent was seeking to revoke
the petitioner’s custody.
Furthermore, unlike the father in Stanley, the respon-
dent had hearings on both of his motions to revoke
commitment at which he was accorded the opportunity
to present evidence regarding his fitness to take custody
of Zoey. In Stanley, the United States Supreme Court
held that the plaintiff had to be ‘‘[g]iven the opportunity
to make his case’’ for custody. Id., 655. It further held
that ‘‘the state’s interest in caring for [the plaintiff’s]
children is de minimis if [the plaintiff] is shown to be
a fit father.’’ (Emphasis omitted.) Id., 657–58. Thus,
Stanley merely requires, as a matter of procedural due
process, a hearing at which the parent can present his
or her case on fitness. It does not require, as the respon-
dent claims, that the petitioner bear the burden of prov-
ing the father unfit at that hearing.6 Accordingly, Stanley
is not applicable to this case.
We now examine the three factors set forth in
Mathews v. Eldridge, supra, 424 U.S. 335, which will
assist us in determining whether the level of process
afforded the respondent was constitutionally sufficient.
The respondent claims that these factors demonstrate
that the court infringed on his federal constitutional
right to procedural due process by not holding an adju-
dicatory hearing wherein his fitness as a parent was
presumed. We disagree.
As to the first factor, namely, ‘‘the private interest
that will be affected by the official action’’; id.; we agree
with the respondent that his private interest in directing
the care and custody of his biological child is substan-
tial. See In re Baby Girl B., 224 Conn. 263, 279, 618
A.2d 1 (1992) (‘‘the interest of parents in their children
is a fundamental constitutional right that undeniably
warrants deference and, absent a powerful countervail-
ing interest, protection’’).
As to the second factor, namely, ‘‘the risk of an erro-
neous deprivation of such interest, given the existing
procedures, and the value of any additional or alternate
procedural safeguards’’; (internal quotation marks omit-
ted) In re Lukas K., supra, 300 Conn. 469; see Mathews
v. Eldridge, supra, 424 U.S. 335; we are not persuaded
under the facts of this case that the court’s adherence
to our statutory procedures created a substantial risk
of an erroneous deprivation of the respondent’s private
interest or that an adjudicatory hearing meant solely
to assess the respondent’s fitness as a parent for Zoey,
at which his fitness would be presumed, would have
been an appropriate response to the respondent’s
motion to revoke commitment.
The respondent argues that ‘‘the process afforded to
[him] as part of his motion to revoke commitment is
insufficient to satisfy the requirement of due process.’’
As examples, the respondent points to the court’s hav-
ing placed the burden of proof on him to establish the
absence of a cause for commitment, and the court’s
failure to assess whether the respondent, himself,
neglected, abused, or abandoned Zoey. Under the facts
and circumstances of this case, we conclude that the
process afforded the respondent in response to his
motion to revoke commitment was constitutionally suf-
ficient in light of Zoey’s already having been adjudicated
uncared for and placed in the petitioner’s custody for
her protection.
As previously stated in this opinion, at the time the
petitioner filed a neglect petition, Zoey was days old.
M identified another man as Zoey’s father. At a hearing
on September 23, 2015, the petitioner, with the
agreement of M, amended the ground of the neglect
petition to allege only that Zoey was uncared for. M
admitted that allegation while the putative father stated
that he would stand silent. The court then adjudicated
Zoey uncared for and ordered her committed to the
care and custody of the petitioner by agreement of the
parties, thus properly proceeding with the two phases,
adjudication and disposition, required by § 46b-129 (j)
(2).7 See In re Joseph W., 305 Conn. 633, 643, 46 A.3d 59
(2012). In the September 23, 2015 hearing, the petitioner
bore the burden of proving that Zoey was uncared for,
which she clearly met. The next phase of the hearing
was the dispositional phase at which the court deter-
mined which of the § 46b-129 (j) (2) dispositional
options was in the best interest of Zoey at that time.
Clearly, in this case, at the time of the September 23,
2015 hearing, placement with the petitioner was in
Zoey’s best interest; her mother was homeless, her pur-
ported father did not acknowledge paternity and was
incarcerated, and neither of them proposed another
option. On these facts, the court properly adjudicated
Zoey uncared for and ordered her committed to the
care and custody of the petitioner.
Approximately six months later, in March, 2016, the
respondent appeared, asserting that he was Zoey’s bio-
logical father. On May 6, 2016, the respondent filed a
motion to revoke commitment on the ground that he
was ‘‘ready, willing, and able to care for his child,’’
that recent paternity tests revealed him to be Zoey’s
biological father, and that it was not in Zoey’s best
interest to be committed to the care and custody of the
petitioner. The court received the results of the genetic
testing on May 19, 2016, and adjudicated the respondent
to be Zoey’s father. This adjudication of parentage took
place when Zoey was more than one year old, and eight
months after she had been adjudicated uncared for and
committed to the care and custody of the petitioner, in
whose custody she had been since she was days old.
Eventually, the court denied the respondent’s motion to
revoke commitment, and the respondent did not appeal
from that judgment.
On June 8, 2017, when Zoey was more than two years
old, and approximately twenty-one months after the
court adjudicated her uncared for and ordered her com-
mitted to the care and custody of the petitioner, the
respondent filed a second motion to revoke commit-
ment, on the same grounds set forth in his first motion.
The court denied that motion on October 31, 2017. The
denial of this motion is the subject of the present appeal.
A motion to revoke commitment is governed by § 46b-
129 (m) and Practice Book § 35a-14A. Section 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 com-
mitment of such child or youth. No such motion shall
be filed more often than once every six months.’’
Practice Book § 35a-14A provides: ‘‘Where a child or
youth is committed to the custody of the commissioner
. . . the commissioner, a parent or the child’s attorney
may file a motion seeking revocation of commitment.
The judicial authority may revoke commitment if a
cause for commitment no longer exists and it is in the
best interests of the child or youth. Whether to revoke
the commitment is a dispositional question, based on
the prior adjudication, 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. If a motion for revocation is denied, a new
motion shall not be filed by the movant until at least
six months have elapsed from the date of the filing of the
prior motion unless waived by the judicial authority.’’
(Emphasis added.)
Pursuant to § 46b-129 (m) and Practice Book § 35a-
14A, the moving party bears the burden of proving that
a cause for commitment no longer exists; if he or she
is successful, the court then must determine whether
revocation of commitment is in the best interest of the
child. In the present case, the respondent contends that
it was a violation of his procedural due process right
for the court to place the burden on him to establish
that no cause for commitment existed. He argues that
the court, instead, should have held an adjudicative
hearing wherein it presumed he was a fit parent, and,
unless the petitioner could establish otherwise, he,
essentially, automatically would get custody of this
child, despite the fact that she already had been adjudi-
cated uncared for and her custody had been transferred
to the petitioner. We disagree with the respondent.
Zoey was born in May, 2015, and adjudicated uncared
for in September, 2015, and committed to the care and
custody of the petitioner. The motion to revoke commit-
ment from which the respondent now appeals was filed
on June 8, 2017, when Zoey was more than two years
old and nearly two years after Zoey’s adjudication and
commitment. The record indicates that Zoey did not
know the respondent for the first year of her life. Simi-
larly, at the time he filed his first motion to revoke
commitment, the respondent knew little or nothing
about Zoey, other than that he might be her biological
father. He had no idea about her medical, social or
psychological needs. He was, for all practical purposes,
a stranger to Zoey. The respondent did not challenge
on appeal the court’s denial of his first motion to revoke
commitment. Instead, he initially made efforts to com-
ply with some of the specific steps ordered by the court
in connection with the first motion, and he participated
in supervised visitation with Zoey. Thus, by the time of
the hearing on the respondent’s second motion to
revoke commitment, the court had available to it sub-
stantial evidence of the respondent’s interactions with
Zoey and his efforts to prepare himself to take custody
of a child who had spent virtually her entire life in the
petitioner’s custody. The evidence was presented to the
court in a three day hearing that involved numerous
witnesses. The court rendered a detailed opinion on
the basis of that evidence and concluded that a cause
for commitment still existed.8 A necessary predicate to
this conclusion is the court’s determination that the
respondent was not fit, at that time, to care for Zoey.
On the basis of the record before us, we are confident
that the procedure afforded the respondent satisfied
the second prong of Mathews. The procedures in place
did not pose an inappropriate risk of an erroneous dep-
rivation of the respondent’s interest in the care and
custody of his child, and the alternative procedural
‘‘safeguard’’ now advocated by the respondent was not
appropriate under the facts and procedural posture of
this case.
As for the third Mathews factor, ‘‘the [g]overnment’s
interest, including the function involved and the fiscal
and administrative burdens that the additional or substi-
tute procedural requirement would entail’’; Mathews v.
Eldridge, supra, 424 U.S. 335; we conclude that the
additional or substitute procedural requirement for
which the respondent advocates—namely, an adjudica-
tive hearing wherein he is presumed to be a fit parent,
and, unless the petitioner could establish otherwise,
he, essentially, automatically would get custody of this
child, despite the fact that the child already had been
adjudicated uncared for and custody had been given
to the petitioner for her protection—simply is inappro-
priate, unwarranted, and ill-advised under the facts and
circumstances of this case, regardless of any fiscal and
administrative burdens that such a procedure would
entail. The petitioner has a substantial interest in ensur-
ing the well-being of children that have been placed in
her custody. Although the respondent’s desire to take
custody of and care for Zoey is admirable, it does not
justify the creation of a process that would require the
court to turn over a child who, properly and without
contest, has been adjudicated uncared for to a person
who does not know anything about the child or her
needs.
Balancing the three Mathews factors, we conclude
that the respondent has not established that his right
to procedural due process was violated by the lack of
an adjudicatory hearing, in response to his motion to
revoke commitment, wherein he would be presumed
to be a fit parent for Zoey, a child adjudicated uncared
for by the Superior Court almost two years earlier. We
conclude that the procedures set forth in § 46b-129 (m)
and Practice Book § 35a-14A strike the appropriate bal-
ance between the petitioner’s and the respondent’s
interests, and comply with the constitution’s procedural
due process requirements. Accordingly, there is no pro-
cedural due process violation under the facts of this
case, and, therefore, the respondent’s claim fails under
Golding’s third prong.
II
The respondent next claims, ‘‘as applied to the
respondent father in this case . . . § 46b-129 (m) vio-
lates his substantive due process right to custody and
care of his child.’’ He argues that he ‘‘has a substantive
due process right to the custody and care for his child
that may not be infringed unless he has been adjudi-
cated to be an unfit parent, or a trial court has found
that granting his motion to revoke commitment would
present a risk of imminent harm to the child.’’ He also
argues that the court improperly placed the burden of
proof on him and thereby failed to provide adequate
protection for his fundamental right. We are not per-
suaded.
Insofar as the claim is unpreserved, the respondent
requests Golding review. State v. Golding, supra, 213
Conn. 239–40. As with the respondent’s procedural due
process claim, he meets the first two prongs of Golding
and, therefore, this claim is subject to review. As to the
third prong of Golding, however, we conclude that the
alleged constitutional violation does not exist.
‘‘For all its consequence, due process has never been,
and perhaps never can be, precisely defined. Lassiter
v. Dept. of Social Services, 452 U.S. 18, 24, 101 S. Ct.
2153, 68 L. Ed. 2d 640 (1981). However, [s]ince the
time of our early explanations of due process, we have
understood the core of the concept to be protection
against arbitrary [government] action. County of Sacra-
mento v. Lewis, 523 U.S. 833, 845, 118 S. Ct. 1708, 140
L. Ed. 2d 1043 (1998); see also Tenenbaum [v. Williams,
193 F.3d 581, 600 (2d Cir. 1999)] ([s]ubstantive due-
process rights guard against the government’s exercise
of power without any reasonable justification in the
service of a legitimate governmental objective) [cert.
denied sub nom. Tenenbaum v. City of New York, 529
U.S. 1098, 120 S. Ct. 1832, 146 L. Ed. 2d 776 (2000)]
. . . .’’ (Internal quotation marks omitted.) Kia P. v.
McIntyre, 235 F.3d 749, 758 (2d Cir. 2000), cert. denied
sub nom. Kia P. v. City of New York, 534 U.S. 820, 122
S. Ct. 51, 151 L. Ed. 2d 21 (2001).
‘‘Parents have a substantive right under the [d]ue
[p]rocess [c]lause to remain together [with their chil-
dren] without the coercive interference of the awesome
power of the state. . . . Such a claim can only be sus-
tained if the removal of the child would have been
prohibited by the Constitution even had the [parents]
been given all the procedural protections to which they
were entitled. . . . In other words, while a procedural
due process claim challenges the procedure by which
a removal is effected, a substantive due process claim
challenges the fact of [the] removal itself.’’ (Citations
omitted; internal quotation marks omitted.) Souther-
land v. City of New York, 680 F.3d 127, 142 (2d Cir.
2012), cert. denied, 568 U.S. 1150, 133 S. Ct. 980, 184
L. Ed. 2d 773 (2013).
‘‘The substantive due-process guarantee also pro-
vides heightened protection against government inter-
ference with certain fundamental rights and liberty
interests. . . . We have described the interest of a par-
ent in the custody of his or her children as a fundamen-
tal, constitutionally protected liberty interest. . . . No
matter how important the right to family integrity, [how-
ever] it does not automatically override the sometimes
competing compelling governmental interest in the pro-
tection of minor children, particularly in circumstances
where the protection is considered necessary as against
the parents themselves.’’ (Citations omitted; internal
quotation marks omitted.) Kia P. v. McIntyre, supra,
235 F.3d 758.
‘‘In discussing the constitutional basis for the protec-
tion of parental rights, the United States Supreme Court
observed in Troxel [v. Granville, 530 U.S. 57, 120 S. Ct.
2054, 147 L. Ed. 2d 49 (2000)] that ‘[t]he liberty interest
. . . of parents in the care, custody, and control of their
children . . . is perhaps the oldest of the fundamental
liberty interests recognized by this [c]ourt. More than
[seventy-five] years ago, in Meyer v. Nebraska, 262 U.S.
390, 399, 401 [43 S. Ct. 625, 67 L. Ed. 1042] (1923), we
held that the liberty protected by the [d]ue [p]rocess
[c]lause includes the right of parents to establish a home
and bring up children and to control the education of
their own. Two years later, in Pierce v. Society of Sis-
ters, 268 U.S. 510, [534–35, 45 S. Ct. 571, 69 L. Ed. 1070]
(1925), we again held that the liberty of parents and
guardians includes the right to direct the upbringing
and education of children under their control. . . . We
returned to the subject in Prince v. Massachusetts, 321
U.S. 158 [64 S. Ct. 438, 88 L. Ed. 645] (1944), and again
confirmed that there is a constitutional dimension to
the right of parents to direct the upbringing of their
children. It is cardinal . . . that the custody, care and
nurture of the child reside first in the parents, whose
primary function and freedom include preparation for
obligations the state can neither supply nor hinder. Id.,
[166].’ . . . Troxel v. Granville, supra, 530 U.S. 65–66.
‘In light of this extensive precedent, it cannot now be
doubted that the [d]ue [p]rocess [c]lause of the [f]our-
teenth [a]mendment protects the fundamental right of
parents to make decisions concerning the care, custody,
and control of their children.’ Id., 66.
‘‘Connecticut courts likewise have recognized the
constitutionally protected right of parents to raise and
care for their children. See, e.g., Denardo v. Bergamo,
272 Conn. 500, 511, 863 A.2d 686 (2005); Crockett v.
Pastore, 259 Conn. 240, 246, 789 A.2d 453 (2002); Roth
v. Weston, [259 Conn. 202, 216, 789 A.2d 431 (2002)];
In re Baby Girl B., [supra, 224 Conn. 279–80] . . . .
When legislation affects a fundamental constitutional
right, it must be strictly scrutinized.’’ Fish v. Fish, 285
Conn. 24, 40–41, 939 A.2d 1040 (2008).
Section 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.’’
‘‘Our Supreme Court has held that a natural parent,
whose child has been committed to the custody of a
third party, is entitled to a hearing to demonstrate that
no cause for commitment still exists. . . . The initial
burden is placed on the persons applying for the revoca-
tion of commitment to allege and prove that cause for
commitment no longer exists. . . . If the party chal-
lenging the commitment meets that initial burden, the
commitment to the third party may then be modified
if such change is in the best interest of the child. . . .
The burden falls on the persons vested with guardian-
ship to prove that it would not be in the best interests
of the child to be returned to his or her natural parents.’’
(Citations omitted; internal quotation marks omitted.)
In re Stacy G., 94 Conn. App. 348, 352 n.4, 892 A.2d
1034 (2006); see In re Nasia B., 98 Conn. App. 319,
328–29, 908 A.2d 1090 (2006) (Under § 46b-129 [m],
‘‘[t]he burden is upon the person applying for the revo-
cation of commitment to allege and prove that cause
for commitment no longer exists. Once that has been
established . . . the inquiry becomes whether a con-
tinuation of the commitment will nevertheless serve
the child’s best interests. On this point, when it is the
natural parent who has moved to revoke commitment,
the state must prove that it would not be in the best
interests of the child to be returned to his . . . natural
parent.’’ [Emphasis omitted; internal quotation marks
omitted.]).
It is the initial burden placed on the respondent to
prove a cause for commitment no longer exists that is
at the heart of his substantive due process claim. In
his appellate brief, the respondent points to specific
language from Troxel v. Granville, supra, 530 U.S. 68–
69, which provides: ‘‘[T]he [petitioner] did not allege,
and no court has found, that [the respondent] was an
unfit parent. That aspect of the case is important, for
there is a presumption that fit parents act in the best
interests of their children. . . . Accordingly, so long
as a parent adequately cares for his or her children (i.e.,
is fit), there will normally be no reason for the State
to inject itself into the private realm of the family to
further question the ability of that parent to make the
best decisions concerning the rearing of that parent’s
children.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) He also argues that our
Supreme Court in Roth specifically held that the state
may infringe on a parent’s fundamental right to the
care and custody of his children ‘‘only when it can be
demonstrated that there is a compelling need to protect
the child from harm.’’ Roth v. Weston, supra, 259
Conn. 229.
We wholeheartedly agree with these statements of
the law as quoted by the respondent. Nevertheless, the
respondent’s attempt to apply this rationale to the pre-
sent case is flawed. Neither Troxel nor Roth involved
children who previously had been adjudicated
neglected or uncared for. Both cases involved the con-
stitutionality, as applied to the facts of the specific
cases, of state statutes that permitted courts to interfere
with a custodial parent’s decision regarding a third par-
ty’s right to compel visitation with their child or chil-
dren. See Troxel v. Granville, supra, 530 U.S. 67 (‘‘[t]hus,
in practical effect, in the State of Washington a court can
disregard and overturn any decision by a fit custodial
parent concerning visitation whenever a third party
affected by the decision files a visitation petition, based
solely on the judge’s determination of the child’s best
interests’’ [emphasis in original]); Roth v. Weston, supra,
259 Conn. 205–206 (concluding that General Statutes
§ 46b-59 was ‘‘unconstitutional as applied to the extent
that the trial court, pursuant to the statute, permitted
third party visitation contrary to the desires of a fit
parent and in the absence of any allegation and proof by
clear and convincing evidence that the children would
suffer actual, significant harm if deprived of the visi-
tation’’).
In this case, there already has been a determination
that Zoey was uncared for, i.e., in need of protection,
and, on the basis of that adjudication, she was commit-
ted to the care and custody of the petitioner. Although
we recognize that at the time of this adjudication,
another man was alleged to have been Zoey’s father,
and the respondent was not a party to the case, it does
not change the historical fact that Zoey had been adjudi-
cated an uncared for child, who was in need of the
petitioner’s protection and intervention.
In applying the burden to the respondent to prove
that a cause for commitment no longer existed, in
response to his motion to revoke commitment, the court
properly applied the law and did not violate the respon-
dent’s right to substantive due process. The respondent
was not entitled to a presumption of fitness after his
daughter already had been adjudicated uncared for and
committed to the care and custody of the petitioner.
Furthermore, there was a compelling reason to protect
Zoey from harm; she was uncared for when she was
merely days old, and this resulted in such an adjudica-
tion. As we previously explained in part I of this opinion,
Zoey was adjudicated uncared for in September, 2015,
and committed to the care and custody of the petitioner,
who had been granted custody of her when she was
days old. The motion from which the respondent now
appeals was filed on June 8, 2017, nearly two years
after Zoey’s adjudication and commitment. In such an
instance, the constitution does not require that the court
presume that the respondent is a fit parent, acting in
the best interest of his child, when the court is consider-
ing the merits of his motion to revoke his daughter’s
commitment, which commitment was made after the
Superior Court adjudicated the child uncared for. In
Troxel and Roth, the courts found that the parents’
substantive due process rights were violated because
the statutes at issue in those cases permitted interfer-
ence with the parents’ right to make decisions for their
children, without the states being required to demon-
strate a compelling need that warranted such interfer-
ence. That is not the case here.
The state, virtually since Zoey’s birth, has had the
custody and responsibility to care for her. Thus, the
respondent is seeking to acquire custody of Zoey from
the petitioner following Zoey’s commitment; he is not
seeking to prevent interference with an existing and
ongoing parent/child relationship. He has never had
custody of Zoey; the petitioner has had custody since
Zoey was days old. Indeed, at the time of her commit-
ment to the petitioner, the respondent was not known
to be her father. When Zoey was found to be uncared
for, the respondent was not in her life providing for her
care. These factual distinctions are important. Further-
more, the state’s interest in protecting the well-being
of Zoey, an uncared for child for whom it has been
responsible for since the child’s birth, is much greater
than was the state’s interest in Troxel and in Roth. Based
on the facts of this case, we conclude that the court’s
application of § 46b-129 (m) did not infringe on the
respondent’s right to substantive due process. Accord-
ingly, the respondent’s claim fails under Golding’s
third prong.
The judgment is affirmed.
In this opinion the other judges 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.
** July 11, 2018, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The attorney for the minor child has submitted a statement, pursuant
to Practice Book § 67-13, adopting the petitioner’s brief.
2
M has been diagnosed as having personality disorders. She is not a party
to this appeal; accordingly, we refer to the respondent father as the
respondent.
3
We have been furnished with an electronic copy of the entire July 14,
2016 hearing transcript. The petitioner, in her appendix, also has provided
a paper copy of the portion of the July 14, 2016 transcript that contains the
court’s oral decision.
4
General Statutes § 46b-120 (8) provides in relevant part that a child is
‘‘uncared for’’ if that child ‘‘is homeless [or his or her] home cannot provide
the specialized care that the physical, emotional or mental condition of the
child or youth requires . . . .’’
5
Insofar as the respondent also argues the unconstitutionality of the ‘‘one-
parent rule’’; see In re Sanders, 495 Mich. 394, 400–401, 852 N.W.2d 524
(2014) (‘‘The one-parent doctrine permits a court to interfere with a parent’s
right to direct the care, custody, and control of the children solely because
the other parent is unfit, without any determination that he or she is also
unfit. In other words, the one-parent doctrine essentially imposes joint and
several liability on both parents, potentially divesting either of custody, on
the basis of the unfitness of one.’’); the statutory scheme in Connecticut
does not require a finding that a parent is unfit. See In re David L., 54 Conn.
App. 185, 191, 733 A.2d 897 (1999); General Statutes §§ 46b-120 and 46b-129
(j). Rather, our statutes focus on the status of the child, at the adjudicatory
phase, regardless of who or what may have caused that status. See In
re David L., supra, 191; General Statutes §§ 46b-120 and 46b-129 (j). The
respondent’s contention that a new adjudicatory hearing was required to
determine ‘‘whether he has ever abused, neglected, or abandoned the child’’
fails to recognize that our statutory scheme does not require a finding of
parental fault. Zoey was adjudicated uncared for in September, 2015, before
the respondent had stepped forward claiming to be her father. That is a
historical fact; she was uncared for.
Furthermore, the facts in In re Sanders are materially different from those
in the present case. In In re Sanders, the respondent father was known at
the time the mother was adjudicated unfit, and, for a period of time, he had
custody of the children. Nevertheless, the petitioner, the Michigan Depart-
ment of Human Services, avoided a hearing on the father’s fitness simply
by dismissing the abuse and neglect claims against the father. In re Sanders,
supra, 495 Mich. 403. Under Michigan’s statutory scheme, this apparently
allowed the petitioner to move to the dispositional phase and switch the
burden of proof to the father. As set forth previously, though, that is not
the procedural posture of this case. Zoey was adjudicated uncared for before
the respondent even was known to be her father; he did not have custody
of her, and there is no indication he was involved in her life at all. In addition,
relying on Stanley, the Michigan Supreme Court in In re Sanders held that
the father’s ‘‘right to direct the care, custody, and control of his children is
a fundamental right that cannot be infringed without some type of fitness
hearing.’’ (Emphasis in original.) Id., 414–15. The court then conducted an
analysis under Mathews v. Eldridge, supra, 424 U.S. 319, to determine
whether a hearing at the dispositional phase, after one parent has been
adjudicated neglected, satisfies the constitution’s due process requirements.
We have applied that same analysis to the proceeding on the respondent’s
motion to revoke commitment in light of the very different facts of this
case. Given the differences in the nature of the proceedings in the two cases
and the materially different facts, we conclude that the Michigan Supreme
Court’s conclusion in In re Sanders is inapposite to the present case.
Finally, it is also significant that during oral argument, the respondent
conceded that if we were to agree with his one-parent argument, we would
have to reverse In re David L. The respondent, however, did not request
an en banc hearing of this court. ‘‘[I]t is axiomatic that one panel of this
court cannot overrule the precedent established by a previous panel’s hold-
ing. . . . This court often has stated that this court’s policy dictates that
one panel should not, on its own, reverse the ruling of a previous panel.
The reversal may be accomplished only if the appeal is heard en banc.’’
(Citation omitted; internal quotation marks omitted.) State v. Carlos P., 171
Conn. App. 530, 545 n.12, 157 A.3d 723, cert. denied, 325 Conn. 912, 158 A.3d
321 (2017). Prudence, therefore, dictates that we decline the respondent’s
invitation to revisit such precedent.
6
Although he acknowledges that Stanley does not address the burden of
proof at a hearing to adjudicate the fitness of a parent, the respondent
argues that the Supreme Court’s subsequent decision in Troxel v. Granville,
530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), makes clear that parents
are entitled to a presumption of fitness and the state always bears the burden
of proving otherwise. Because the court in Troxel addressed a parent’s
substantive due process rights, we address the respondent’s reliance on
Troxel in part II of this opinion.
7
General Statutes § 46b-129 (j) (2) provides: ‘‘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 of Children and Fami-
lies, 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; (B) vest such child’s or youth’s legal
guardianship in any private or public agency that is permitted by law to
care for neglected, uncared for or abused children or youths or with any other
person or persons found to be suitable and worthy of such responsibility
by the court, including, but not limited to, any relative of such child or
youth by blood or marriage; (C) vest such child’s or youth’s permanent legal
guardianship in any person or persons found to be suitable and worthy of
such responsibility by the court, including, but not limited to, any relative
of such child or youth by blood or marriage in accordance with the require-
ments set forth in subdivision (5) of this subsection; or (D) place the child
or youth in the custody of the parent or guardian with protective supervision
by the Commissioner of Children and Families subject to conditions estab-
lished by the court.’’
8
Specifically, the court found, ‘‘the [respondent] presently has not demon-
strated that he can meet Zoey’s emotional and medical needs as well as her
need for safety. As a result, a reason for commitment continues to exist,
and the [respondent], having failed to meet his burden that no cause for
commitment exists, his motion to revoke is hereby denied.’’