Kyle S. v. Jayne K. , 182 Conn. App. 353 ( 2018 )

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KYLE S. v. JAYNE K.*
JAYNE K. v. KYLE S.
(AC 39969)
DiPentima, C. J., and Lavine and Bishop, Js.
Syllabus
The plaintiff in the first action, K, sought a dissolution of his marriage to
the defendant in that action, J. The trial court rendered judgment dissolv-
ing the marriage, and the dissolution judgment incorporated the parties’
written agreement, which provided the parties with joint custody of
their minor child, T, and that T’s primary residence would be with K.
In February, 2016, J filed an application for an emergency ex parte order
of custody pursuant to statute (§ 46b-56f), seeking temporary custody
of T with no visitation between T and K. In her application, J alleged
that K had physically abused his fiance´e in T’s presence, and that K had
been arrested as a result of the altercation. In a second action, J filed
an application for relief from abuse seeking a restraining order pursuant
to statute (§ 46b-15) to protect both herself and T, alleging that K had
threatened to kill J if she took T away from K, that K had been arrested
as a result of the altercation with his fiance´e, and that K had a violent
history and criminal record of abuse. The trial court granted the ex parte
applications, issued a restraining order, awarded temporary custody of
T to J and scheduled further hearings. At a hearing in August, 2016, the
court modified custody, ordered the parties to have joint legal custody of
T, with T’s primary residence with J, permitted K to see T in therapeutic
sessions with C, a psychologist with whom T had begun therapy, and
ordered that T continue therapy with C until no longer needed and that
K could have contact with T as permitted by J. At a hearing in December,
2016, the court, with a waiver by both parties, admitted into evidence
an updated mental health report from C regarding T’s progress. The
court also extended the restraining order only as to J, ordering K to
stay 100 yards away from J at all times and not to have any contact
with J. The court further ordered that it would rely on C to dictate the
scope of K’s conduct with T in a therapeutic setting and stated that C
would be in charge of contact between K and T. On K’s appeal to this
court, held:
1. K could not prevail on his claim that J had failed to meet her burden of
proof with respect to her applications for relief from abuse and for an
emergency ex parte order of custody: the trial court properly issued
the restraining order to include protection for both J and T, as J presented
evidence of K’s altercation with his fiance´e and his threat to harm J
and, thus, there was sufficient evidence before the court to prove that
a continuous threat of present physical pain or physical injury to J
existed as required by § 46b-15, and it was within the court’s discretion
to make such order it deemed appropriate for the protection of J, the
applicant, and T, her dependent child; moreover, there was sufficient
evidence to support the court’s determination that an immediate and
present risk of physical danger or psychological harm to T existed at
the time of J’s application for an emergency ex parte order of custody
pursuant to § 46b-56f, as the court heard evidence that K had engaged
in a physical altercation with his fiance´e while T was present, T’s teacher
expressed concern about T’s behavior, C’s reports expressed concern
about incidents of violence at K’s home, and T’s babysitter testified that
T became scared, upset, and hurt when asked about going to K’s home.
2. K failed to establish his claim that the court committed plain error in
admitting into evidence T’s mental health records, which was based on
his claim that certain waivers executed by the parties were invalid due
the existence of a conflict; the claimed error of the trial court was
neither readily discernible on its face nor obvious in the sense of not
debatable, as the parties, as the parents and de facto guardians of T,
agreed that the court should review T’s mental health reports, noted
the importance of protecting T’s privacy with respect to the records
and agreed it would be beneficial for the court to review them, K did
not provide any authority requiring the court to appoint a guardian ad
litem or showing that the parties’ agreement to allow the court to use
the records was improper, and K’s argument that the parties were dis-
qualified from waiving T’s privilege because the parties were custody
combatants, and that waiver was done to advance each party’s own
interest instead of for T’s benefit was speculative and, therefore, unper-
suasive.
3. The court’s order regarding K’s parenting time and custody of T constituted
an impermissible delegation of judicial authority to C; although it was
permissible for the court to seek advice and to accept recommendations
from a nonjudicial entity, the court, which expressly stated that it would
rely on C with respect to issues involving T and noted that C would
dictate the scope of K’s contact with T in a therapeutic setting, improp-
erly granted decision-making authority to C by removing itself from the
process and permitting C to decide the nature and scope of K’s contact
with T.
Argued December 7, 2017—officially released June 5, 2018
Procedural History
Action, in the first case, for the dissolution of a mar-
riage, and for other relief, brought to the Superior Court
in the judicial district of New Britain, where the court,
Dolan, J., rendered judgment dissolving the marriage
and granting certain other relief; thereafter, the defen-
dant in the first case filed a motion to modify custody
and an application for an emergency ex parte order of
custody, and an application, in a second case, for relief
from abuse; subsequently, the court, Carbonneau, J.,
granted the application for ex parte order of custody
in the first case, and granted the application for relief
from abuse in the second case as to the applicant and
minor child; thereafter, the matters were consolidated
for a hearing before Carbonneau, J.; orders extending
the order of temporary custody; subsequently, the
court, Carbonneau, J., rendered judgments modifying
custody in the first case and extending the temporary
restraining order only as to the applicant in the second
case, from which the plaintiff in the first case and
respondent in the second case appealed to this court.
Reversed in part; further proceedings.
Allen G. Palmer, with whom, on the brief, was Logan
A. Carducci, for the appellant (plaintiff in the first case,
respondent in the second case).
Opinion
DiPENTIMA, C. J. In this protracted domestic litiga-
tion, arising out of a dissolution of marriage action
and a separate application for relief from abuse, the
plaintiff/respondent, Kyle S., appeals from postjudg-
ment orders of the court rendered in favor of the defen-
dant/applicant, Jayne K.1 On appeal, Kyle S. claims that
(1) Jayne K. failed to meet her burden of proof with
respect to her application for relief from abuse filed
pursuant to General Statutes § 46b-15, her application
for an emergency ex parte order of custody filed pursu-
ant to General Statutes § 46b-56f and her motion for
modification of custody filed pursuant to General Stat-
utes § 46b-56, (2) the court committed plain error by
accepting the parties’ waiver of the minor child’s privi-
leged mental health records and admitting the records
into evidence and (3) the court improperly delegated
its authority to decide Kyle S.’s parenting time and cus-
todial rights to a nonjudicial entity. We agree with Kyle
S.’s third claim and, accordingly, reverse in part the
judgments of the trial court.
The following facts and procedural history are rele-
vant to our discussion. In 2008, Kyle S. initiated a disso-
lution proceeding. On May 2, 2008, the parties agreed
to the appointment of Katarzyna Maluszewski as guard-
ian ad litem for T, the minor child of the parties, whose
date of birth is in May, 2004 . On September 8, 2009,
Jayne K. filed an application for relief from abuse
against Kyle S., and the court issued an ex parte
restraining order. See Jayne S. v. Kyle S., 116 Conn.
App. 690, 690–91, 978 A.2d 94 (2009). Jayne K. alleged
that a previous restraining order had been issued
against Kyle S. as a result of a January, 2008 incident
when he had kicked Jayne K., breaking her rib. Id., 691.
The September, 2008 application sought a restraining
order after Jayne K. had claimed, inter alia, that Kyle
S. left a voicemail in which he had threatened ‘‘to kill’’
her. Id. Following a hearing, the court, Hon. Bernard
D. Gaffney, judge trial referee, extended the restraining
order for a period of six months, from October 3, 2008,
to April 3, 2009. Id., 691–92.
On April 22, 2009, the court, Dolan, J., rendered a
judgment dissolving the parties’ marriage. It found that
the parties had been married in July, 2006, and had one
child, T. The court incorporated the parties’ written
agreement dated April 17, 2009, into the dissolution
judgment. The agreement provided that the parties
would have joint custody of T, with his primary resi-
dence with Kyle S. The agreement also provided that
Jayne K. would not pay child support and neither party
would pay or receive alimony. In 2011, Maluszewski
accepted $3000 as a full and final settlement of her fees
as the guardian ad litem for T.2
For the period between February, 2013, and Febru-
ary, 2016, the parties filed no motions, and the dissolu-
tion/custody file remained static. On February 11, 2016,
Jayne K. filed an application for an emergency ex parte
order of custody of T, pursuant to General Statutes
§ 46b-56f.3 She sought, inter alia, an order of temporary
custody of T, with no visitation between T and Kyle S.
In the affidavit attached to her motion, she claimed that
Kyle S. had physically abused his fiance´e in the presence
of T. Jayne K. further stated that Kyle S. had been
arrested and that the Department of Children and Fami-
lies (department) had been contacted. She also filed a
motion for modification of custody seeking sole custody
of T, listing Kyle S.’s arrest as the requisite material
change in circumstances.4
At this time, Jayne K., in a separate file, also filed
an application for relief from abuse against Kyle S.,
pursuant to General Statutes § 46b-15,5 seeking a
restraining order to protect both herself and T. In her
affidavit attached to this application, Jayne K.
expressed fear for her safety, stating that Kyle S. had
been arrested for attacking his fiance´e, had a violent
history and criminal record of abuse, stalking and
harassment, and had threatened to kill Jayne K. if she
took T from him.
That day, the court, Carbonneau, J., granted Jayne
K.’s ex parte applications and awarded the relief sought
without holding a hearing. Specifically, the court issued
a restraining order and awarded temporary custody of
T to Jayne K. It further ordered the parties to cooperate
with the department and to follow any reasonable man-
dates. Additionally, the court scheduled a hearing on
these matters.
Four days of hearings regarding Jayne K.’s applica-
tions and motion commenced on July 25, 2016. Jayne
K. testified that in February, 2016, T’s teacher had
emailed her that T had exhibited ‘‘goofy behaviors’’ at
school. She also received a call from Kyle S.’s fiance´e,
informing Jayne K. about the events of Kyle S.’s arrest.6
Jayne K. also indicated that T had started treatment
with Warren Corson, a psychologist, on June 9, 2016.
According to Jayne K., T benefitted greatly from this
therapy. She requested sole custody of T. The court
continued its temporary order of sole custody in favor
of Jayne K.
At the next hearing date, on August 12, 2016, the
court ordered that the parties would share joint legal
custody of T, with primary residence with Jayne K. The
court ordered that Kyle S. could see T in therapeutic
sessions with Corson, and ordered other contact as
permitted by Jayne K., including access via electronic
means. It further ordered that the therapy sessions with
Corson were to continue until no longer needed or
beneficial. At the September 23, 2016 hearing, following
the agreement of the parties, the court admitted into
evidence a mental health report from Corson regard-
ing T.
At the December 9, 2016 hearing, the court noted
that the restraining order was scheduled to expire on
February 19, 2017.7 Again with the agreement of the
parties, the court admitted into evidence an updated
report of T’s progress with Corson. Following Kyle S.’s
testimony, and closing arguments from the parties, the
court orally rendered its decision.
The court found Jayne K.’s testimony credible and
that she had sustained her burden of proof under § 46b-
15. Accordingly, it continued the existing restraining
order, iterating that Kyle S. was ‘‘not to assault, threaten,
abuse, harass, follow, interfere with or stalk [Jayne K.].’’
The court ordered Kyle S. to stay away from Jayne K.’s
home and work, to not have any contact with her for
any reason, and ‘‘to stay 100 yards away from her at
all times [and] for all reasons.’’
The court then considered the issue of Kyle S.’s con-
tact with T. The court stated that it would rely on Corson
to dictate the scope of Kyle S.’s conduct with T in a
therapeutic setting. The court specifically noted: ‘‘So
. . . I’m not extending any aspect of the temporary
restraining order to [T] but, in the other file, the custody
file, I am restricting that contact so that the mental
health professional can be in charge.’’ (Emphasis
added.) This appeal followed. Additional facts will be
set forth as necessary.
I
Kyle S. first claims that Jayne K. failed to meet her
burden of proof with respect to her application for relief
from abuse, her application for an emergency ex parte
order of custody and her motion to modify custody.
Specifically, Kyle S. argues that neither the application
for a restraining order nor the evidence at the hearings
were sufficient to establish that he presented an imme-
diate and present risk of physical danger or psychologi-
cal harm to T, or that a change in custody was
warranted. We disagree.
‘‘The standard of review in family matters is well
settled. An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . Likewise, [a] prayer for injunctive relief
is addressed to the sound discretion of the court and
the court’s ruling can be reviewed only for the purpose
of determining whether the decision was based on an
erroneous statement of law or an abuse of discre-
tion. . . .
‘‘In determining whether a trial court has abused its
broad discretion in domestic relations matters, we
allow every reasonable presumption in favor of the
correctness of its action. . . . Appellate review of a
trial court’s findings of fact is governed by the clearly
erroneous standard of review. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Citations omitted;
internal quotation marks omitted.) Putman v. Kennedy,
104 Conn. App. 26, 31, 932 A.2d 434 (2007), cert. denied,
285 Conn. 909, 940 A.2d 809 (2008); see also Jordan M.
v. Darric M., 168 Conn. App. 314, 318, 146 A.3d 1041,
cert. denied, 324 Conn. 902, 151 A.3d 1287 (2016).
A
We first address Kyle S.’s argument that there was
insufficient evidence to support the granting of Jayne
K.’s application for a restraining order pursuant to
§ 46b-15.8 ‘‘The plain language of § 46b-15 clearly
requires a continuous threat of present physical pain
or physical injury before a court can grant a domestic
violence restraining order.’’ Krystyna W. v. Janusz W.,
127 Conn. App. 586, 590, 14 A.3d 483 (2011); Putman
v. Kennedy, supra, 104 Conn. App. 32. ‘‘[D]omestic vio-
lence restraining orders will not issue in the absence
of the showing of a threat of violence, specifically a
continuous threat of present physical pain or physical
injury to the applicant. . . . The legislature promul-
gated § 46b-15 to provide an expeditious means of relief
for abuse victims. . . . It is not a statute to provide a
remedy in every custody and visitation dispute, how-
ever urgent.’’ (Citations omitted; internal quotation
marks omitted.) Jordan M. v. Darric M., supra, 168
Conn. App. 319–20.
At the hearing, Jayne K. testified that she had spoken
with Kyle S.’s fiance´e following the incident resulting
in Kyle S.’s arrest. The fiance´e told ‘‘her side of what
happened while [T] was present in [Kyle S.’s] care.’’
Jayne K. also testified that T had been exposed to a
‘‘history of violence’’ and that the department had inves-
tigated the charges filed against Kyle S. During cross-
examination, Jayne K. testified that Kyle S. had threat-
ened her in February, 2016.9 Additionally, in the August
9, 2016 mental health report, T’s therapist reported that
T had been ‘‘very concerned about incidents of violence
that reportedly occurred at [Kyle S.’s] home . . . .’’ In
its oral decision, the court expressly found Jayne K.’s
testimony to be credible.
The court granted the application for a restraining
order on the bases of Jayne K.’s credible testimony, all
of the evidence, and the incident that had occurred
between Kyle S. and his fiance´e in February, 2016, that
led to this arrest. We previously have recognized that
a single incident, coupled with the findings that the
subject of the restraining order presently poses a contin-
uous threat, may satisfy the requirement of § 46b-15.
Rosemarie B.-F. v. Curtis P., 133 Conn. App. 472, 477,
38 A.3d 138 (2012); see also Putnam v. Kennedy, supra,
104 Conn. App. 34 (requirement for multiple incidents
of physical abuse would defy prophylactic purpose of
§ 46b-15). In the present case, Jayne K. presented evi-
dence of Kyle S.’s altercation with his fiance´e and his
threat to harm Jayne K. We conclude, therefore, that
there was sufficient evidence before the court to prove
the existence of a continuous threat of present physical
pain or physical injury to Jayne K. Furthermore, it was
within the court’s discretion to ‘‘make such orders as
it deems appropriate for the protection of the applicant
and such dependent children . . . as the court sees
fit.’’ (Emphasis added.) General Statutes § 46b-15 (b);
see also General Statutes § 46b-15 (e). Accordingly, we
cannot conclude that the court improperly issued the
restraining order to include protection for both Jayne
K. and T.
B
Next, we address Kyle S.’s argument that there was
insufficient evidence to support the February 11, 2016
granting of Jayne K.’s application for an emergency ex
parte order of custody pursuant to § 46b-56f.10 Subsec-
tion (c) of this statute provides in relevant part: ‘‘The
court shall order a hearing on any application made
pursuant to this section. If, prior to or after such hear-
ing, the court finds that an immediate and present risk
of physical danger or psychological harm to the child
exists, the court may, in its discretion, issue an emer-
gency order for the protection of the child . . . .’’ We
note that this order was superseded by the August 12,
2016 order. As with an order pursuant to § 46b-15, a
§ 46b-56f order is not subject to dismissal pursuant to
the mootness doctrine. See generally, Putnam v. Ken-
nedy, 279 Conn. 162, 164–65, 900 A.2d 1256 (2006);
Gail R. v. Bubbico, 114 Conn. App. 43, 47 n.5, 968 A.2d
464 (2009).
We recite again our standard of review. ‘‘The proper
standard of proof in a trial on an order of temporary
custody is the normal civil standard of a fair preponder-
ance of the evidence. . . . We note that [a]ppellate
review of a trial court’s findings of fact is governed
by the clearly erroneous standard of review. The trial
court’s findings are binding upon this court unless they
are clearly erroneous in light of the evidence and the
pleadings in the record as a whole. . . . We cannot
retry the facts or pass on the credibility of the witnesses.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . With those principles in mind, we will review the
evidence presented at the hearing . . . to determine
whether the court’s determination is supported by the
evidence in the record.’’ (Internal quotation marks omit-
ted.) Garvey v. Valencis, 177 Conn. App. 578, 597, 173
A.3d 51 (2017).
As we previously noted, the court heard evidence
that Kyle S. engaged in a physical altercation with his
fiancee´ while T was present. Following this incident,
the parties exchanged text messages, where Jayne K.
indicated that she had spoken with T’s teacher. The
teacher indicated that T was having a ‘‘hard time’’ and
that the teacher was ‘‘worried’’ about him. According to
Corson’s August 9, 2016 report, T was ‘‘very concerned’’
about the ‘‘incidents of violence’’ at Kyle S.’s home.
Courtney Harris, T’s babysitter, testified that T became
scared, upset and hurt when asked about going to Kyle
S.’s home. According to Harris, T’s demeanor and
behavior improved from February, 2016 through July,
2016, when T was living with Jayne K.
In short, there was evidence to support the court’s
determination that an immediate and present risk of
physical danger or psychological harm to T existed at
the time of Jayne K.’s application pursuant to § 46b-
56f (c). See Garvey v. Valencis, supra, 177 Conn. App.
597–99. On the basis of this evidence, we conclude
that the evidence was sufficient to support the court’s
conclusion to sustain the emergency ex parte cus-
tody order.
II
Kyle S. next claims that the court committed plain
error by admitting T’s mental health reports into evi-
dence following the parties’ waiver of T’s privileged
mental health records. Specifically, he contends that the
parties’ waiver was invalid because each had a conflict
‘‘based on his or her own self-interest to advance his
or her own case.’’ We conclude that Kyle S. failed to
establish plain error in this case.
The following additional facts are necessary for our
discussion. At the outset of the August 12, 2016 hearing,
Kyle S.’s counsel noted that T had continued his treat-
ment with Corson, that Kyle S. had the opportunity
to meet with and speak to Corson, and that it was
appropriate for the court to hear Corson’s suggestions
regarding the familial dynamic. Counsel did note one
area of concern: ‘‘One of the things, though, that I
wanted to make sure of, with no [guardian ad litem]
in, is that, you know, from my client’s perspective, he
wanted to proceed cautiously as far as we don’t want
this be an absolute and open-ended waiver of the [psy-
chologist]/client privilege that [T] has with Dr. Corson.
But we do think that the court’s going to want some
continuing input from him.’’
After discussing other matters, the court returned to
the issue of T’s privileged communications with Corson.
‘‘There is no guardian in this case. Ordinarily it is the
guardian that holds the privilege for the minor child.
Right now, as I understand it, the parents, as the co-
equal guardians of the child, would hold that privilege
. . . .’’ The court clarified that previously there had
been joint custody, but presently a temporary order
of custody in favor of Jayne K. was in effect. As a
prophylactic measure, the court stated: ‘‘I will allow
[the privileged material be admitted into evidence] only
if mother and father waive that privilege on their child’s
behalf.’’ Kyle S.’s counsel agreed with the court’s cau-
tion.11 Additionally, both parties agreed that they shared
the goal of protecting T’s privacy. They then agreed
that a mental health report regarding T, dated August
9, 2016, should be admitted into evidence. Similarly, on
September 23, 2016, and December 9, 2016, the court
admitted updated reports from Corson into evidence
without objection.12
General Statutes § 52-146c (b) prohibits a psycholo-
gist from disclosing any communications between a
person and the psychologist absent a waiver of this
privilege. See also Cabrera v. Cabrera, 23 Conn. App.
330, 335, 580 A.2d 1227, cert. denied, 216 Conn. 828,
582 A.2d 205 (1990); see generally In re Jacklyn H., 162
Conn. App. 811, 824, 826, 131 A.3d 784 (2016). In the
present case, the parties, the parents of T,13 consented
to the admission into evidence of the mental health
screening reports. Indeed, a review of the transcripts
reveals that it was Kyle S., acting through his counsel,
who advocated for the admission of these documents.
On appeal, however, he changed course and now con-
tends that it was plain error for the court to admit the
mental health reports of T after soliciting waivers from
the parties.14
‘‘It is well established that the plain error doctrine,
codified at Practice Book § 60-5, is an extraordinary
remedy used by appellate courts to rectify errors com-
mitted at trial that, although unpreserved [and noncon-
stitutional in nature], are of such monumental
proportion that they threaten to erode our system of
justice and work a serious and manifest injustice on
the aggrieved party. [T]he plain error doctrine . . . is
not . . . a rule of reviewability. It is a rule of reversibil-
ity. That is, it is a doctrine that this court invokes in
order to rectify a trial court ruling that, although either
not properly preserved or never raised at all in the trial
court, nonetheless requires reversal of the trial court’s
judgment . . . for reasons of policy. . . . In addition,
the plain error doctrine is reserved for truly extraordi-
nary situations [in which] the existence of the error is
so obvious that it affects the fairness and integrity of
and public confidence in the judicial proceedings. . . .
Plain error is a doctrine that should be invoked spar-
ingly. . . .
‘‘There are two prongs of the plain error doctrine; an
appellant cannot prevail under the plain error doctrine
unless he demonstrates that the claimed error is both
so clear and so harmful that a failure to reverse the
judgment would result in manifest injustice. . . . With
respect to the first prong, the claimed error must be
patent [or] readily [discernible] on the face of a factually
adequate record, [and] also . . . obvious in the sense
of not debatable. . . . With respect to the second
prong, an appellant must demonstrate that the failure to
grant relief will result in manifest injustice.’’ (Citations
omitted; emphasis omitted; footnote omitted; internal
quotation marks omitted). State v. Outlaw, 179 Conn.
App. 345, 354–55, A.3d , cert. denied, 328 Conn. 910,
A.3d (2018); see also State v. McClain, 324 Conn. 802,
812–13, 155 A.3d 209 (2017).
We conclude that Kyle S. has failed to establish the
first prong of the plain error doctrine. See State v. Bialo-
was, 178 Conn. App. 179, 190, 174 A.3d 853 (2017)
(defendant bore burden of establishing entitlement to
relief under plain error doctrine). Specifically, the
claimed error of the trial court was neither readily dis-
cernible on its face nor obvious in the sense of not
debatable. The parties, parents and de facto guardians
of T, agreed that the court should review T’s mental
health reports. Both noted the importance of protecting
T’s privacy with respect to these records, and agreed
it would be beneficial for the court to review Corson’s
reports. Kyle S. has not provided us with any authority
requiring the court in this case to appoint a guardian
ad litem, or showing that the parties’ agreement to the
use of the records by the court was improper.15 Instead,
he merely speculates that, due to their status as ‘‘cus-
tody combatants,’’ the parties’ waiver was done in ‘‘his
or her own self-interest to advance his or her own case’’
and thus the parties are disqualified from waiving T’s
privilege. Additionally, he assumes that T’s ‘‘treatment
records were not offered in his best interests, [as] no
[minor] wants it known that he may be in therapy, let
alone having his therapist’s treatment records in the
public domain.’’ Such speculation fails to persuade us
that the court committed plain error in accepting the
parties’ waivers and admitting the exhibits into evi-
dence. See generally In re Samantha S., 120 Conn.
App. 755, 759, 994 A.2d 259 (2010) (speculation and
conjecture have no place in appellate review), appeal
dismissed, 300 Conn. 586, 15 A.3d 1062 (2011). We con-
clude, therefore, that Kyle S. failed to meet his burden
with respect to his claim of plain error.
III
Finally, Kyle S. claims that the court improperly dele-
gated its authority to decide his parenting time and
custody to a nonjudicial entity. Specifically, he contends
that it was error for the court to delegate the determina-
tion of the scope, nature and duration of his contact
with T to Corson. We agree.
The following additional facts are necessary. In the
court’s December 9, 2016 oral decision, it noted that T
had been impacted by the events of the past year. It
then discussed the positive effect of T’s therapy with
Corson. ‘‘Again, I’m delighted at the involvement and
the progress that [T] has made with Dr. Corson. That
is the path for [T] out of this darkness and that will
happen in due course. Dr. Corson has been involved in
planning with events unfolding as predictably as possi-
ble. One of the events that he has to deal with is the
effect of this restraining order.’’
After explaining the conditions of its restraining
order, the court addressed T’s contact with Kyle S. ‘‘As
far as [T] being involved, I’m going to rely on Dr. Corson.
Dr. Corson will dictate the scope of your contact with
[T] in a therapeutic setting. Again, I think he’s done
a marvelous job as I gleaned from the reports that have
been submitted to this court and I want that to continue
very sincerely. I want there to be normalcy between
you and your son. I want to go carefully and delicately
so that [T’s] needs and wishes are foremost.’’ (Empha-
sis added.)
After Kyle S.’s counsel inquired about the scope of
the order, the court explained as follows: ‘‘What I’m—
what I’m intending—I have two files to work with here.
The restraining order—the remedies with a restraining
order are rather a sledge hammer. I’m trying to be a
little more deft and I am simply in the other file entering
an order that says that [Kyle S.’s] contact with [T] will
be therapeutic in nature as dictated by Dr. Corson. I
want the mental health professional to guide me and I
want [Kyle S.’s] contact with [T] to be expandable or
contractible in conjunction with the child’s needs. So
you are correct . . . I’m not extending any aspect of
the temporary restraining order to [T] but, in the other
file, the custody file, I am restricting that contact so
that the mental health professional can be in charge.’’
(Emphasis added.) The court further noted that the
parties could ‘‘clarify’’ with Corson as needed.
‘‘It is well settled authority that [n]o court in this
state can delegate its judicial authority to any person
serving the court in a nonjudicial function. The court
may seek the advice and heed the recommendation
contained in the reports of persons engaged by the
court to assist it, but in no event may such a nonjudicial
entity bind the judicial authority to enter any order or
judgment so advised or recommended. . . . A court
improperly delegates its judicial authority to [a nonjudi-
cial entity] when that person is given authority to issue
orders that affect the parties or the children. Such
orders are part of a judicial function that can be done
only by one clothed with judicial authority.’’ (Citation
omitted; internal quotation marks omitted.) Keenan v.
Casillo, 149 Conn. App. 642, 660, 89 A.3d 912, cert.
denied, 312 Conn. 910, 93 A.3d 594 (2014); see also
Valante v. Valante, 180 Conn. 528, 532–33, 429 A.2d 964
(1980) (rendering of judgment is judicial function and
can only be accomplished by one clothed with judicial
authority); Nashid v. Andrawis, 83 Conn. App. 115, 120,
847 A.2d 1098 (while judicial authority may seek advice
and recommendations, in no event may nonjudicial
entity bind judicial authority to enter any order or judg-
ment), cert. denied, 270 Conn. 912, 853 A.2d 528 (2004).
In the present case, Kyle S. argues that the court
improperly delegated the determination of parenting
time and custodial rights to Corson. We agree. The court
expressly stated that it would ‘‘rely’’ on Corson with
respect to issues involving T It noted that Corson would
‘‘dictate’’ the scope of Kyle S.’s contact with T in a
therapeutic setting. After Kyle S.’s counsel sought a
further explanation, the court iterated and emphasized
Corson’s role in determining the contact between T and
Kyle S. It further ordered that this contact was subject
to expansion or contraction depending on T’s needs
and that Corson would be ‘‘in charge.’’
The court’s orders regarding Kyle S.’s contact with
T constituted an impermissible delegation of judicial
authority to Corson. Pursuant to the orders of the court,
Corson was to ‘‘dictate’’ the scope of the contact
between Kyle S. and T, and Corson was authorized to
increase or decrease said contact as he saw fit. The
court also noted that Corson was ‘‘in charge.’’ We recog-
nize that ‘‘[a] court is permitted to seek advice, and
accept recommendations from [a nonjudicial entity].’’
Keenan v. Casillo, supra, 149 Conn. App. 160. Here, the
court advanced past that point, and instead granted
decision making authority to Corson. Valante v.
Valante, supra, 180 Conn. 532–33; Weinstein v.
Weinstein, 18 Conn. App. 622, 628–29, 561 A.2d 443
(1989). Put another way, the court in the present case
improperly removed itself from the decision making
process by permitting Corson to decide the nature and
scope of Kyle S.’s contact with T. See, e.g., Zilkha v.
Zilkha, 180 Conn. App. 143, 171–72, A.3d (2018) (con-
trary to parties’ claim of improper delegation, court
properly considered and fully resolved custody and visi-
tation issues).
The judgment in the dissolution action is reversed
only as to the orders providing that a nonjudicial entity
determine the contact between Kyle S. and T and the
case is remanded for further proceedings solely as to
that issue; the judgment in that action is affirmed in all
other respects. The judgment in the application for
relief from abuse action is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identify may be ascertained. See General Statutes § 54-86e.
1
This appeal comes to us from two distinct yet intertwined files from the
Superior Court. In the divorce and custody action, Docket No. FA-08-
4016382-S, Kyle S. was the plaintiff and Jayne K. the defendant. In the relief
from abuse action, Docket No. FA-16-4038505-S, Jayne K. was the applicant
and Kyle S. the respondent. For purposes of clarity and consistency, we
refer to the parties by name in this opinion.
We also note that Jayne K. represented herself in the proceedings before
the trial court. On June 30, 2017, we ordered that the appeal would be
considered solely on the basis of the record and Kyle S.’s brief and oral
argument as a result of Jayne K’s failure to file her brief by the established
deadline. See, e.g., Ellen S. v. Katlyn F., 175 Conn. App. 559, 560 n.1, 167
A.3d 1182 (2017); Gail R. v. Bubbico, 114 Conn. App. 43, 45 n.1, 968 A.2d
464 (2009).
2
In the middle of a flurry of postjudgment child related filings, the court
reappointed Maluszewski as guardian ad litem on November 10, 2011. The
record does not reveal when thereafter Maluszewski ceased acting as T’s
guardian ad litem. At the July 25, 2016 hearing, the court noted that there
was no guardian ad litem in the case.
3
General Statutes § 46b-56f provides in relevant part: ‘‘(a) Any person
seeking custody of a minor child pursuant to section 46b-56 or pursuant to
an action brought under section 46b-40 may make an application to the
Superior Court for an emergency ex parte order of custody when such
person believes an immediate and present risk of physical danger or psycho-
logical harm to the child exists.
‘‘(b) The application shall be accompanied by an affidavit made under
oath which includes a statement (1) of the conditions requiring an emergency
ex parte order, (2) that an emergency ex parte order is in the best interests
of the child, and (3) of the actions taken by the applicant or any other
person to inform the respondent of the request or, if no such actions to
inform the respondent were taken, the reasons why the court should consider
such application on an ex parte basis absent such actions.’’
4
‘‘General Statutes § 46b-56 provides trial courts with the statutory author-
ity to modify an order of custody or visitation. When making that determina-
tion, however, a court must satisfy two requirements. First, modification of
a custody award must be based upon either a material change [in] circum-
stances which alters the court’s finding of the best interests of the child
. . . or a finding that the custody order sought to be modified was not
based upon the best interests of the child. . . . Second, the court shall
consider the best interests of the child and in doing so may consider several
factors. . . . Before a court may modify a custody order, it must find that
there has been a material change in circumstances since the prior order of
the court, but the ultimate test is the best interests of the child. . . . These
requirements are based on the interest in finality of judgments . . . and
the family’s need for stability. . . . The burden of proving a change to be
in the best interest of the child rests on the party seeking the change.’’
(Citations omitted; emphasis omitted; footnotes omitted; internal quotation
marks omitted.) Petrov v. Gueorguieva, 167 Conn. App. 505, 511–12, 146
A.3d 26 (2016).
5
General Statutes § 46b-15 (a) provides: ‘‘Any family or household mem-
ber, as defined in section 46b-38a, who has been subjected to a continuous
threat of present physical pain or physical injury, stalking or a pattern of
threatening, including, but not limited to, a pattern of threatening, as
described in section 53a-62, by another family or household member may
make an application to the Superior Court for relief under this section. The
court shall provide any person who applies for relief under this section with
the information set forth in section 46b-15b.’’ As former spouses, Kyle S.
and Jayne K. fall within the statutory definition of ‘‘family or household
member.’’ General Statutes § 46b-38a (2) (A); see also Princess Q. H. v.
Robert H., 150 Conn. App. 105, 113 n.4, 89 A.3d 896 (2014). Additionally,
‘‘[t]he court, in its discretion, may make such orders as it deems appropriate
for the protection of the applicant and such dependent children or other
persons as the court sees fit.’’ General Statutes § 46b-15 (b).
6
The parties stipulated that the state nolled all of the charges against
Kyle S. stemming from this incident on July 13, 2016, involving his fiance´e.
7
After a hearing on March 18, 2016, the court extended the restraining
order against Kyle S. to February 19, 2017.
8
As we have noted, the restraining order expired on February 19, 2017.
Despite the expiration of the restraining order, Kyle S.’s appellate claim is
not subject to dismissal pursuant to the mootness doctrine. In Putman v.
Kennedy, 279 Conn. 162, 164–65, 900 A.2d 1256 (2006), our Supreme Court
concluded that the adverse collateral consequences exception to the moot-
ness doctrine applied to appeals from domestic violence restraining orders.
See also Rosemarie B.-F. v. Curtis P., 133 Conn. App. 472, 475, 38 A.3d 138
(2012) (same); Jayne S. v. Kyle S., supra, 116 Conn. App. 692 (same); Gail
R. v. Bubbico, supra, 114 Conn. App. 47 n.5 (appeal of restraining order
issued pursuant to § 46b-15 rescued from mootness by collateral conse-
quences doctrine).
9
Jayne K. acknowledged, however, that she could not recall the words
used by Kyle S., only that he had threatened her.
10
In passing, Kyle S. notes that Jayne K.’s application for an emergency
ex parte order of custody included an ‘‘appended motion for modification
of custody.’’ Jayne K., however, failed to adequately brief, and thus aban-
doned any challenge on appeal, to the court’s granting of the motion for
modification of custody.
11
Specifically, Kyle S.’s counsel stated: ‘‘That makes sense, your Honor.
. . . I think in fairness to both parties, it probably would be a good idea that
if this came in, that they would—they would end up waiving the privilege.’’
12
The report from the September 23, 2016 proceeding is not listed on the
exhibit list and is not included in the exhibits provided to this court.
13
We note that General Statutes § 45a-606 provides in relevant part: ‘‘The
father and mother of every minor child are joint guardians of the person
of the minor, and the powers, rights and duties of the father and the mother
in regard to the minor shall be equal.’’ See also In re Tayquon H., 76 Conn.
App. 693, 698, 821 A.2d 796 (2003) (mother and father of minor child are
de facto guardians of that child).
14
It would appear that Kyle S., at least in part, induced the claimed error
of the trial court by his actions regarding the admission of the mental health
reports. The appellate courts of this state have recognized the uncertainty
in our law regarding whether claims of induced error may be considered
under the plain error doctrine. See State v. Darryl W., 303 Conn. 353, 371
n.17, 33 A.3d 239 (2012); Healey v. Haymond Law Firm, P.C., 174 Conn.
App. 230, 243–44, 166 A.3d 10 (2017); State v. Rios, 171 Conn. App. 1, 47–48,
156 A.3d 18, cert. denied, 325 Conn. 914, 159 A.3d 232 (2017). Generally, even
in instances of induced error, courts have considered claims of plain error.
15
However, on remand, we believe the court should seriously consider
appointing counsel for the minor child, T, in order for T, through counsel,
to have the opportunity to argue whether his privacy rights in these records
should be protected.