In re David B. , 167 Conn. App. 428 ( 2016 )

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IN RE DAVID B.*
(AC 38665)
Lavine, Prescott and Bear, Js.
Argued May 9—officially released July 22, 2016**
(Appeal from Superior Court, judicial district of
Fairfield, Juvenile Matters at Bridgeport, Maronich, J.)
David E. Schneider, Jr., for the appellant (respon-
dent mother).
Joshua Michtom, assistant public defender, for the
appellee (substitute petitioner).
Isidro Rueda, for the minor child.
Opinion
PRESCOTT, J. The sole issue raised in the present
appeal is whether the trial court, in adjudicating a peti-
tion to terminate parental rights originating in Probate
Court, had the authority, following the death of the
original petitioner and legal guardian of the minor child
during the pendency of the proceedings, to grant a
motion to substitute the child’s newly appointed legal
guardian as the petitioner in place of the decedent. We
conclude that, under the unique set of circumstances
presented here, such a substitution was both legally
permissible and appropriate given that the newly
appointed legal guardian is authorized to bring the ter-
mination action herself.
The respondent mother, Carmen C., appeals from the
judgment of the trial court rendered following a trial de
novo on an amended petition to terminate her parental
rights as to her son, David B.1 The respondent claims
on appeal that the court’s decision to terminate her
parental rights should be reversed because, following
the death of the original petitioner, Josefa G., who was
David’s maternal grandmother and his legal guardian,
the court improperly granted a motion to substitute
in Josefa’s mother, Emma G., who, following Josefa’s
death, was duly appointed by the Probate Court as
David’s new legal guardian and as the executor of
Josefa’s estate.
The respondent makes two arguments in support of
her claim on appeal. First, she argues that General Stat-
utes § 52-599,2 which, with limited exceptions, provides
for the survival of an action or proceeding following
the death of a party and authorizes the substitution of
the executor or administrator of that party’s estate, is
inapplicable in proceedings on a petition to terminate
parental rights. Accordingly, she argues that the court
committed reversible error by allowing Emma’s substi-
tution in her capacity as the administrator of Josefa’s
estate.
Second, she asserts that motions to substitute parties
are not authorized in juvenile court proceedings, citing
Practice Book § 34a-1 (b),3 and, therefore, the trial court
should have treated the filing of the motion to substitute
as ‘‘a nullity,’’ and the case should have proceeded ‘‘as
if the motion had never been filed.’’ To be clear, the
respondent has raised no challenge on appeal either to
the factual or legal merits of the court’s decision to
terminate her parental rights other than the court’s deci-
sion on the motion to substitute. We conclude, contrary
to the respondent’s arguments, that the court had ample
authority to permit the matter to move forward and
grant the motion to substitute, and, accordingly, we
affirm the judgment of the court terminating the respon-
dent’s parental rights.
The record discloses the following relevant facts and
procedural history, which largely are undisputed. David
was born in March, 2003. In September, 2003, the
Department of Children and Families (department)
obtained an ex parte order granting it temporary cus-
tody of David due to the respondent’s ongoing mental
health issues and concerns about domestic violence and
substance abuse by David’s father. David subsequently
was adjudicated uncared for, committed to the care of
the Commissioner of Children and Families, and placed
with his grandmother, Josefa, who also had temporary
custody of David’s older sibling, Emmanuel.4 David
remained with Josefa until the commitment was
revoked in 2005, at which time he was returned to the
care of the respondent.
In 2008, in response to a call from David’s grandfa-
ther, the police found David living with the respondent
in horrendous conditions, in poor health, and malnour-
ished.5 The respondent consented to David being
returned to Josefa’s custody. At that time, Josefa’s
mother, Emma, also was living with Josefa.6 Shortly
after David’s removal from her care, the respondent and
David’s father submitted an application to the Probate
Court for the district of Bridgeport seeking to remove
themselves voluntarily as David’s guardians and to
appoint Josefa as David’s sole legal guardian. Although
David’s parents later had a change of heart with regard
to relinquishing guardianship of David, after extensive
and contentious litigation, on June 21, 2010, Josefa was
appointed as David’s sole legal guardian. Litigation
between Josefa and David’s parents nevertheless con-
tinued regarding parental visitation. The visitation
rights of David’s father eventually were terminated in
May, 2011, and the respondent’s visitation rights also
were severely restricted.7
On April 12, 2013, Josefa, as David’s sole legal guard-
ian, filed a petition with the Probate Court to terminate
the parental rights of the respondent and David’s father
on the ground that David previously had been adjudi-
cated uncared for and his parents had failed to achieve
a sufficient degree of personal rehabilitation to encour-
age a belief that, within a reasonable period of time,
they could assume a responsible position in David’s
life. See General Statutes § 45a-717 (g) (2) (D) (i). In a
statement attached to the petition, Josefa alleged that
David’s parents had failed to support or take care of
him, that they could not keep him safe, and that Josefa
could no longer tolerate the parents’ threats and
arguments.
The Probate Court, Ganim, J., ordered an investiga-
tion by the department and received a report on March
12, 2014, in which the department recommended that
termination of his parents’ parental rights was in David’s
best interest. The court held a hearing on April 28, 2014,
and, on October 20, 2014, issued a decree terminating
both parents’ parental rights on the grounds of failure
to rehabilitate and a lack of any parent-child relation-
ship as set forth in § 45a-717 (g) (2) (C) and (D) (i).
The father filed an appeal from the decree terminating
his parental rights with the Superior Court on November
5, 2014. The respondent filed her own appeal on Novem-
ber 8, 2014. The appeals apparently were consolidated.
On December 4, 2014, during the pendency of the
probate appeal, Josefa died. On December 15, 2014, the
Probate Court appointed Emma as David’s new legal
guardian. It also appointed Emma as the administrator
of Josefa’s estate on December 22, 2014.
On February 23, 2015, the respondent and the father
each filed a motion asking the court to ‘‘nonsuit’’ Josefa,
in which they argued that a reply to their probate appeal
had been due on December 11, 2014, but Josefa had
passed away and her estate had not intervened. On
March 17, 2015, Emma filed a handwritten motion ask-
ing the court to substitute her in for Josefa because
she was now David’s sole legal guardian. She did not
assert in her motion that she was seeking substitution
as the administrator of Josefa’s estate. The respondent
and David’s father each filed objections to the motion
for substitution. They argued that Emma is ‘‘only the
legal guardian to [David]’’ and that she ‘‘has no legal
authority to substitute in place of the decedent
[Josefa].’’
On April 14, 2015, the trial court, Maronich, J., con-
ducted a hearing on the motion to substitute. The argu-
ments began in the morning with a discussion of
whether the record reflected if Emma had been
appointed as the administrator of Josefa’s estate, as
David’s legal guardian, or both, and whether the parties
were prepared to stipulate to any of those facts. The
respondent’s attorney argued that the respondent’s
objection to substitution was not based on whether
Emma had been appointed as David’s guardian, which
he claimed was irrelevant to whether the court should
permit substitution, but on whether ‘‘she has the author-
ity to step into the shoes of the estate.’’ Thus, the respon-
dent appeared to take the position that the court only
had the authority to grant substitution to a duly
appointed representative for Josefa’s estate. At no time
during the argument on the motion to substitute did
either the respondent’s attorney or the attorney for
the father argue or suggest that further action on the
petition was no longer possible due to Josefa’s death,
or that the court lacked authority to substitute in a
new party.
The court, contrary to the respondent’s position, indi-
cated that it believed it was important to establish
whether Emma had been appointed as David’s legal
guardian. The court admonished the attorneys, indicat-
ing that it had expected them to come to court ‘‘pre-
pared with all proper documentation or in the
alternative, to be able to at least agree on a basic set
of facts.’’ The court took a recess after instructing the
lawyers to ‘‘get something definitive’’ from the Pro-
bate Court.
When the matter resumed in the afternoon, the court
agreed to take judicial notice of the entire Probate Court
file, which the court noted included a decree dated
December 15, 2014, appointing Emma as David’s guard-
ian, and a December 22, 2014 decree appointing her as
the administrator of Josefa’s estate. The court asked
the respondent’s attorney if the court properly under-
stood his argument to be that Emma ‘‘needs something
more than just simple appointment as guardian’’ to sup-
port substitution. The respondent’s attorney first
seemed to acknowledge that his argument against the
motion to substitute likely had been rendered moot by
the court’s decision to take judicial notice of the decree
appointing Emma as administrator for Josefa’s estate.
He then responded that his understanding of the case
law was that Emma could be substituted in for Josefa
only on the basis of her position as administrator for
the estate, and that her position as legal guardian was
irrelevant. Counsel for the father agreed with that
analysis.
When counsel for the minor child asked what case
law the respondent’s attorney was relying on in support
of his argument, he indicated Burton v. Browd, 258
Conn. 566, 783 A.2d 457 (2001), in which our Supreme
Court discusses § 52-599, Connecticut’s so-called right
of survival statute, and In re Lisa N., Superior Court,
judicial district of New Haven (July 28, 1992) (7 Conn.
L. Rptr. 175), in which the court, Downey, J., held that
proceedings on a petition to terminate parental rights
may survive the death of the petitioner provided that
an executor or administrator is substituted in for the
decedent in accordance with § 52-599.
Because counsel for the respondent was advancing
the position that Judge Downey’s decision was legally
correct, and the trial court already had taken judicial
notice that Emma had been appointed as the administra-
tor for Josefa’s estate on December 22, 2014, the court
asked respondent’s counsel if he was willing to concede
that Emma could be substituted into the present action
in place of Josefa. Counsel was not willing to make
such a concession, however, explaining that he was
‘‘trying to preserve any appellate issues if there are any
appellate issues.’’
After hearing from all the parties, the court issued
an oral decision denying the motions for nonsuit, grant-
ing the motion to substitute, and overruling the objec-
tions of the respondent and David’s father. The court
reasoned that it was unnecessary for it to rely upon
Judge Downey’s decision in In re Lisa N. or to discuss
whether it agreed with that court’s analysis of § 52-599.
According to the court, Emma had been appointed as
David’s legal guardian and, as such, was a proper party
to prosecute a petition to terminate parental rights in
accordance with General Statutes § 45a-715. The court
identified no other legal impediments to its exercising
its discretion and allowing the substitution.
Emma filed a motion on September 22, 2015, seeking
permission to amend the termination petition to include
as an additional ground for termination that there was
no ongoing parent-child relationship between David and
his parents and to allow further time to establish such
a relationship would be detrimental to David’s best
interests.8 See General Statutes § 45a-717 (g) (2) (C).
The court granted the motion over the objections of
the parents. The court then conducted a trial de novo
on the amended petition over the course of three days,
beginning on October 21, 2015.9
Following trial, the court issued a written memoran-
dum of decision on November 9, 2015, in which it
granted the amended petition to terminate parental
rights, concluding that the petitioner had proven by
clear and convincing evidence both grounds alleged in
the petition. Specifically, on the basis of its review of
the evidence, the court found that neither the respon-
dent nor David’s father was fit to parent their son or
even to engage in visitation, and there was no prospect
that either would be able to do so at any time in the
foreseeable future. The court further found that no posi-
tive emotional aspect of a parent-child relationship
existed between David and either of his parents, and
there was no reasonable prospect that that would
change in the foreseeable future. Finally, the court
found that termination was in David’s best interest, and
it reconfirmed Emma as David’s legal guardian. This
appeal followed.
The sole claim raised by the respondent in this appeal
from the court’s decision to terminate her parental
rights is that the court improperly granted the motion
for substitution filed by David’s current legal guardian,
Emma, following the death of the original petitioner
and David’s former legal guardian, Josefa. Although the
respondent does not claim any error with the court’s
decision on the merits of the petition, she nevertheless
takes the position for the first time on appeal that the
proceedings should not have been permitted to move
forward following Josefa’s death, and that Emma
should have been required to file a new petition with the
Probate Court. The respondent advances two primary
arguments in support of her claim. First, she argues,
contrary to the position she staked out before the trial
court, that substitution of Emma was not authorized
under § 52-599. Second, she argues that our rules of
practice do not authorize the use of motions to substi-
tute in juvenile matters, and, therefore, the court lacked
the authority to consider Emma’s motion. We address
each argument in turn after first setting forth our stan-
dard of review and legal principles that will aid our
consideration of the respondent’s claim.
‘‘The decision whether to grant a motion for the addi-
tion or substitution of a party to legal proceedings rests
in the sound discretion of the trial court. . . . In
reviewing the trial court’s exercise of that discretion,
every reasonable presumption should be indulged in
favor of its correctness . . . and only if its action dis-
closes a clear abuse of discretion is our interference
warranted.’’ (Internal quotation marks omitted.) Young-
man v. Schiavone, 157 Conn. App. 55, 65, 115 A.3d 516
(2015). Whether, in a given situation, a court has the
legal authority to consider a particular motion presents
a question of law over which we exercise plenary
review. See Rome v. Album, 73 Conn. App. 103, 108,
807 A.2d 1017 (2002). Furthermore, to the extent that
it is necessary to construe or gauge the applicability of
a statute or provision of our rules of practice, our review
is also plenary. See id.; Wiseman v. Armstrong, 295
Conn. 94, 99, 989 A.2d 1027 (2010).
Section 45a-715 (a) provides: ‘‘Any of the following
persons may petition the Court of Probate to terminate
parental rights of all persons who may have parental
rights regarding any minor child or for the termination
of parental rights of only one parent provided the appli-
cation so states: (1) Either or both parents, including
a parent who is a minor; (2) the guardian of the child;
(3) the selectmen of any town having charge of any
foundling child; (4) a duly authorized officer of any child
care facility or child-placing agency or organization or
any children’s home or similar institution approved by
the Commissioner of Children and Families; (5) a rela-
tive of the child if the parent or parents have abandoned
or deserted the child; (6) the Commissioner of Children
and Families, provided the custodial parent of such
minor child has consented to the termination of parental
rights and the child has not been committed to the
commissioner, and no application for commitment has
been made; provided in any case hereunder where the
child with respect to whom the petition is brought has
attained the age of twelve, the child shall join in the
petition.’’ (Emphasis added.) This statute, however, is
silent regarding a court’s authority to grant a motion
to substitute a party once such a proceeding has
been initiated.
‘‘[T]he termination of parental rights is a most serious
and sensitive judicial action. . . . A judgment termi-
nating a parent’s rights not only severs the emotional
and physical ties between parent and child, but also
absolves that parent of all future support obligations.’’
(Citation omitted; internal quotation marks omitted.)
In re Bruce R., 234 Conn. 194, 200, 662 A.2d 107 (1995).
‘‘[C]hildren involved in termination proceedings have
a strong interest in the speedy resolution of such pro-
ceedings, for regardless of their outcome, their final
resolution promotes permanency in the children’s fam-
ily relationships and stability in their lives. . . . The
promotion of those objectives may be put at risk, if not
fatally compromised, by injecting undue delay for any
purpose into a termination proceeding. . . . Due to the
psychological effects of prolonged termination pro-
ceedings on young children, time is of the essence
. . . .’’ (Citation omitted; emphasis added; internal quo-
tation mark omitted.) In re Quamaine K., Jr., 164 Conn.
App. 775, 794, A.3d , cert. denied, 321 Conn. 919,
A.3d (2016).
The addition or substitution of parties to legal pro-
ceedings generally is favored in order to permit courts
to make timely and complete determinations on behalf
of parties with genuine interests in the outcome of
controversies brought before them. See Fairfield Mer-
rittview Ltd. Partnership v. Norwalk, 320 Conn. 535,
553 n.21, 133 A.3d 140 (2016); Poly-Pak Corp. of
America v. Barrett, 1 Conn. App. 99, 102, 468 A.2d
1260 (1983). To that end, our rules of practice contain
multiple provisions authorizing courts to substitute par-
ties in a variety of situations as the interests of justice
require. See Practice Book §§ 9-18 through 9-22; see
also General Statutes §§ 52-107 through 52-110.
Section § 52-599 also authorizes the court to grant a
motion to substitute following the death of a party. See
footnote 2 of this opinion. It was enacted in order to
abrogate a common-law rule that the death of a sole
plaintiff or defendant automatically caused an action to
abate, meaning that the court no longer had jurisdiction
over the action and its erasure from the docket was
required. See Burton v. Browd, supra, 258 Conn. 570–71;
Barton v. New Haven, 74 Conn. 729, 730, 52 A. 403
(1902). As our Supreme Court has recognized, ‘‘[o]ver-
technical formal requirements have ever been a prob-
lem of the common law, leading [legislative bodies]
at periodic intervals to enact statutes . . . which, in
substance, told the courts to be reasonable in their
search for technical perfection.’’ (Internal quotation
marks omitted.) Andover Ltd. Partnership I v. Board
of Tax Review, 232 Conn. 392, 399–400, 655 A.2d 759
(1995).
Section 52-599 expressly provides for the continua-
tion of an action despite a party’s death and for the
substitution of the executor or administrator of the
deceased party’s estate in accordance with certain stat-
utory parameters. The statute has been construed as
being broadly applicable, and clearly reflects the gen-
eral policy favoring the continuation and timely resolu-
tion of actions on the merits whenever possible. Our
Supreme Court has described § 52-599 as having a
‘‘broad sweep’’ and that the only exceptions to its appli-
cation ‘‘are those set forth in § 52-599 (c): (1) . . . any
cause or right of action or . . . any civil action or pro-
ceeding the purpose or object of which is defeated or
rendered useless by the death of any party thereto, (2)
. . . any civil action or proceeding whose prosecution
or defense depends upon the continued existence of
the persons who are plaintiffs or defendants, or (3)
. . . any civil action upon a penal statute.’’ (Internal
quotation marks omitted.) Commission on Human
Rights & Opportunities v. Greenwich Catholic Elemen-
tary School System, Inc., 202 Conn. 609, 614, 522 A.2d
785 (1987). With these principles in mind, we turn now
to the arguments raised by the respondent in support
of her appeal from the judgment terminating her paren-
tal rights.
I
The respondent first argues that the court improperly
allowed substitution of Emma in her capacity as admin-
istrator of Josefa’s estate because § 52-599 is inapplica-
ble in a proceeding to terminate parental rights. We are
not persuaded by this argument for the following three
reasons: (1) the court granted substitution to Emma in
her capacity as David’s legal guardian, not as adminis-
trator in accordance with § 52-599; (2) the respondent,
and not the court, was the proponent for the applicabil-
ity of § 52-599 in resolving the motion to substitute and
should not be permitted to adopt a contrary position
on appeal; and (3) we agree with the court that it is
unnecessary to determine the applicability of § 52-599
on the present facts because it otherwise had the
authority to grant the motion to substitute.
First, it is a mischaracterization of the court’s ruling
to state that the court allowed substitution of Emma
in her capacity as the administrator of Josefa’s estate.
Emma’s handwritten motion clearly asked the court to
grant her substitution in her capacity as David’s legal
guardian, not as administrator. It was the respondent
and David’s father who opposed substitution on the
ground that Emma’s status as guardian was insufficient
to permit substitution, and they tacitly invoked § 52-
599 by suggesting in their motions for nonsuit that the
estate, presumably meaning a representative of the
estate, properly should have intervened to answer the
appeal. The respondent also raised § 52-599 at the hear-
ing on the motion to substitute by citing to case law
that addressed that statute and, in fact, appeared to
advocate for the court’s application of the statute in
deciding the motion to substitute.
The court, however, did not rely upon § 52-599 as
the source of its authority to make the substitution. It
expressly stated that it was not deciding whether § 52-
599 generally was applicable. Instead, the court theo-
rized that it had the authority to substitute in Emma
for Josefa, not because Emma was the administrator
of Josefa’s estate, but because Emma was now a party
with genuine interest in the outcome of the pending
litigation, having obtained the authority as David’s
newly appointed legal guardian to prosecute a petition
to terminate parental rights on his behalf pursuant to
§ 45a-715 (a). Accordingly, the court determined that
Emma was the proper party to stand in the shoes of
Josefa, David’s prior guardian. Because the court did
not rely on § 52-599 in rendering the judgment on
appeal, the respondent’s contention that it did so
improperly is wholly unavailing.
Second, to the extent that § 52-599 was injected as
an issue in this case, it was the attorneys for the respon-
dent and David’s father who relied upon and urged the
court at the hearing on the motion to substitute to
apply § 52-599 in deciding the motion. The respondent,
therefore, should not be heard on appeal with respect to
a claim now arguing against the statute’s applicability. It
is a well settled principle of appellate review that a
party cannot invite a trial court to take a position and
then, after the court has adopted that position, claim
error. This is because, if we were to endorse such behav-
ior, we effectively would be sanctioning trial by ambush,
which we have repeatedly stated we will not allow.
‘‘[A] party cannot take a path at trial and change
tactics on appeal. . . . This court routinely has held
that it will not afford review of claims of error when
they have been induced. [T]he term induced error, or
invited error, has been defined as [a]n error that a party
cannot complain of on appeal because the party,
through conduct, encouraged or prompted the trial
court to make the erroneous ruling. . . . It is well
established that a party who induces an error cannot
be heard to later complain about that error. . . . This
principle bars appellate review of induced nonconstitu-
tional and induced constitutional error. . . . The
invited error doctrine rests on principles of fairness,
both to the trial court and to the opposing party.’’ (Cita-
tion omitted; footnote omitted; internal quotation marks
omitted.) Gorelick v. Montanaro, 119 Conn. App. 785,
796–97, 990 A.2d 371 (2010).
In both her written opposition to the motion for sub-
stitution and at the hearing on that motion, the respon-
dent took the position that Emma could not be
substituted into the action solely by virtue of her
appointment as David’s legal guardian, and that she
needed first to be appointed as the administrator of
Josefa’s estate. After it was determined at the hearing
by judicial admission that Emma also had been
appointed as the administrator of Josefa’s estate, the
respondent all but conceded that its argument against
substitution was moot. The respondent never argued
in her written opposition or at the hearing on the motion
for substitution that she believed that the termination
proceedings could not survive the death of Josefa, as
she now contends on appeal. To the contrary, as author-
ity for the argument she was advancing at the hearing,
the respondent cited favorably to Judge Downey’s deci-
sion in In re Lisa N., supra, 7 Conn. L. Rptr. 176, in
which Judge Downey held, in reliance on § 52-599, that
termination proceedings do survive the death of a peti-
tioner, and that adjudication of the petition may pro-
ceed after the administrator or the executor of the
deceased petitioner has been substituted in for the
decedent.
As we already have explained, the court’s analysis
did not involve application of § 52-599, and, therefore,
no actual error was induced by the respondent’s
actions. The underlying principle that a party should
be estopped from claiming error on appeal on the basis
of a legal position directly in opposition to one advanced
by the party before the trial court nonetheless remains
apt, and its application here further countenances our
decision to reject the respondent’s argument regarding
§ 52-599.
Third, and most significantly, we agree with the court
that it was proper to substitute Emma as the petitioner
because of her position as David’s legal guardian, and,
therefore, it is unnecessary to determine at this time
whether a court properly could grant substitution to
someone who ordinarily would not have standing to
prosecute a petition but who was an executor or admin-
istrator of the estate of a deceased petitioner and, thus,
potentially subject to § 52-599. As counsel for Emma
readily admitted at oral argument before this court,
application of § 52-599 to the facts of this case would
not be a precise jurisprudential fit. By its express lan-
guage, the applicability of § 52-599 reasonably can be
viewed as limited to those civil cases in which, despite a
party’s death, the continuation of the litigation arguably
could benefit the decedent’s estate, typically in some
pecuniary manner, such that permitting substitution of
a representative for the decedent’s estate would pre-
serve both the adversarial nature of the proceedings
and allow the action to move forward to a resolution
with an interested party on each side of the litigation.
Section 52-599, however, also appears to evince a some-
what broader policy consideration that can help to
inform our resolution of the issue now before us.
Namely, it represents a preference for the survival of
actions over the common-law rule of abatement per se;
see Craig v. Wagner, 88 Conn. 100, 103, 89 A. 916 (1914);
and provides for the timely substitution of a party hold-
ing an interest in the litigation that is sufficiently equiva-
lent in nature to the decedent to permit the action to
be tried to a final resolution.
A petition to terminate parental rights is not a typical
civil action. Like a neglect petition, it is sui generis. See
In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226
(2005) (stating neglect petition is sui generis). It is not
a creature of the common law, but a statutory action.
It is, therefore, unclear whether any vestige of the old
common-law rule requiring the abatement of an action
following the death of a solitary party proponent would
even apply to a termination proceeding.
As previously indicated, § 45a-715 (a) sets forth a
list of persons who may petition the Probate Court to
terminate parental rights, but is silent regarding the
substitution of parties once a petition has been brought.
It is important to remember, however, that whoever
initiates termination proceedings does so on behalf of
the minor child. Although § 45a-715 (a) specifically
includes the guardian of a child amongst those allowed
to file a petition with the Probate Court, it does not
mention the executor or administrator of a deceased
guardian as a party authorized to prosecute a petition.
Because § 52-599 only directly addresses the substitu-
tion of a representative of a decedent’s estate, and such
a representative is not authorized by statute to prose-
cute a petition to terminate parental rights, there is an
incongruence in attempting to directly apply § 52-599
to the facts of the present case, and we do not purport
to do so. Nevertheless, if we consider the more general
policy implications underlying § 52-599 in conjunction
with other statutory authority granted to courts acting
on juvenile matters, we conclude that the court in the
present case had sufficient authority to grant substi-
tution.
The general authority of the Superior Court to act in
juvenile matters is set forth in General Statutes § 46b-
121, titled, ‘‘ ‘Juvenile matters’ defined. Authority of
court.’’ Subsection (a) (1) of § 46b-121 provides that
juvenile matters include ‘‘appeals from probate con-
cerning adoption, termination of parental rights and
removal of a parent as guardian.’’ Subsection (b) (1) of
§ 46b-121 provides in relevant part: ‘‘In juvenile matters,
the Superior Court shall have authority to make and
enforce such orders directed to parents . . . guardians,
custodians or other adult persons owing some legal
duty to a child or youth therein, as the court deems
necessary or appropriate to secure the welfare, protec-
tion, proper care and suitable support of a child or
youth subject to the court’s jurisdiction or otherwise
committed to or in the custody of the Commissioner
of Children and Families. . . .’’ (Emphasis added.) The
court’s authority to make orders directed at persons
owing a legal duty to a child logically would extend to
exercising that authority at the request of a party
through a proper motion. Here, by granting Emma’s
motion, the court effectively made an order directed
at Emma, David’s guardian, to be substituted as the
petitioner in place of Josefa.
The broad statutory grant of authority found in § 46b-
121 is, in our view, sufficient to encompass the authority
to order the substitution of parties if the court deems
that a substitution is necessary to protect the welfare
of a child. Consideration of the broad scope of this
authority in light of the broader policy considerations
underlying § 52-599, which clearly favors the continua-
tion of an action despite the death of a party provided
that the purpose of the action is not defeated, supports
the proposition that if the petitioner in a termination
of parental rights proceeding dies prior to a final resolu-
tion of the petition, the action should be permitted to
move forward following the timely substitution of a
party who, on his or her own, has the authority to bring
such a petition on behalf of the minor child, including
a newly appointed guardian.10
Emma, as David’s guardian, had standing to initiate
her own action to terminate the respondent’s parental
rights on the basis of the exact same facts and legal
authority raised in Josefa’s petition. Requiring her to
file a new petition with the Probate Court would have
resulted in considerable and unnecessary delay in
attaining permanency for David. Requiring such a dupli-
cative procedure rather than allowing substitution into
the existing action would undermine our stated policy
to resolve termination proceedings in an expeditious
fashion. See In re Quamaine K., Jr., supra, 164 Conn.
App. 794. The respondent’s position is made that much
more untenable in the present case due to the fact that
the respondent has not challenged any aspect of the
merits of the court’s decision to terminate her parental
rights. We are persuaded, without directly applying § 52-
599 or determining its applicability under different
facts, that a termination of parental rights action can
proceed forward following the death of a sole petitioner
provided that someone with the statutory authority to
stand in the petitioner’s shoes—i.e. someone authorized
under § 45a-715 (a) to file a petition to terminate paren-
tal rights on behalf of the same child—is seasonably
substituted into the proceedings in place of the dece-
dent. For the foregoing reasons, we reject the respon-
dent’s argument that the court incorrectly applied § 52-
599 in this case.
II
The respondent also argues that motions to substitute
parties are not authorized for use in juvenile court pro-
ceedings. According to the respondent, the court should
have treated the filing of the motion to substitute ‘‘as
a nullity’’ and granted the motions for nonsuit. We con-
clude that the respondent failed to properly preserve
this argument for appellate review and, even if she had,
the argument lacks merit.
As we have already stated, ‘‘[a] party cannot present
a case to the trial court on one theory and then seek
appellate relief on a different one . . . . For this court
to . . . consider [a] claim on the basis of a specific
legal ground not raised during trial would amount to
trial by ambuscade, unfair both to the [court] and to
the opposing party.’’ (Internal quotation marks omit-
ted.) State v. Santana, 313 Conn. 461, 466–67, 97 A.3d
963 (2014); see also Practice Book § 60-5 (‘‘court shall
not be bound to consider a claim unless it was distinctly
raised at the trial’’).
Although the respondent and David’s father each filed
oppositions to the motion to substitute, neither argued
as a basis for denying the motion that it was procedur-
ally improper or that, because this was a juvenile matter,
the court was not authorized to consider a motion to
substitute. Those arguments also were not made by the
parties at the hearing on the motion to substitute. Sim-
ply opposing the motion to substitute on the ground
that Emma’s role as legal guardian was insufficient to
permit her to be substituted in for Josefa did not pre-
serve for appellate review any and all arguments that
the respondent could have raised before the court in
opposition but failed to do. See White v. Mazda Motor
of America, Inc., 313 Conn. 610, 619–21, 99 A.3d 1079
(2014). Accordingly, because the respondent’s argu-
ment was never considered or decided by the trial court,
it is unpreserved.11
The judgment is affirmed.
In this opinion LAVINE, J. 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 22, 2016, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
In addition to terminating the parental rights of the respondent mother,
the court also terminated the parental rights of David’s father, who also
had appealed from the underlying probate decree terminating his parental
rights. The father has not appealed from the judgment of the trial court and,
therefore, we refer to the mother as the respondent throughout this opinion.
2
General Statutes § 52-599 provides: ‘‘(a) A cause or right of action shall
not be lost or destroyed by the death of any person, but shall survive in
favor of or against the executor or administrator of the deceased person.
‘‘(b) A civil action or proceeding shall not abate by reason of the death
of any party thereto, but may be continued by or against the executor or
administrator of the decedent. If a party plaintiff dies, his executor or
administrator may enter within six months of the plaintiff’s death or at any
time prior to the action commencing trial and prosecute the action in the
same manner as his testator or intestate might have done if he had lived.
If a party defendant dies, the plaintiff, within one year after receiving written
notification of the defendant’s death, may apply to the court in which the
action is pending for an order to substitute the decedent’s executor or
administrator in the place of the decedent, and, upon due service and return
of the order, the action may proceed.
‘‘(c) The provisions of this section shall not apply: (1) To any cause or
right of action or to any civil action or proceeding the purpose or object
of which is defeated or rendered useless by the death of any party thereto,
(2) to any civil action or proceeding whose prosecution or defense depends
upon the continued existence of the persons who are plaintiffs or defendants,
or (3) to any civil action upon a penal statute.’’
3
Practice Book § 34a-1 provides in relevant part: ‘‘(a) Except as otherwise
provided, the sections in chapters 1 through 7 shall apply to juvenile matters
in the superior court as defined by General Statutes § 46b-121
‘‘(b) The provisions of Sections 8-2, 9-5, 9-22, 10-12 (a) and (c), 10-13, 10-
14, 10-17, 10-18, 10-29, 10-62, 11-4, 11-5, 11-6, 11-7, 11-8, 11-10, 11-11, 11-12,
11-13, 12-1, 12-2, 12-3, 13-1 through 13-11 inclusive, 13-14, 13-16, 13-21 through
13-32 inclusive, subject to Section 34a-20, 15-3, 15-8, 17-4, and 17-21 of the
rules of practice shall apply to juvenile matters in the civil session as defined
by General Statutes § 46b-121. . . .’’
4
Emmanuel had been removed from the respondent’s care while she was
pregnant with David.
5
The court stated in its memorandum of decision that ‘‘[w]hen the officers
forced the door open they found [the respondent] and [David] living in
squalid conditions. Dirty clothes and garbage were strewn about, and the
shades were tightly drawn. Half empty prescription bottles lay on the floor
amidst the refuse. The apartment was infested with roaches and bedbugs.
[The respondent] was found in her room where she admitted to having
spent the past three weeks smoking and vomiting. So severely swollen
was [the respondent’s] stomach that the EMTs believed she was pregnant.
[David], now almost five years old, was found malnourished and so severely
covered with insect bites that the EMTs believed he was suffering from
chicken pox. [David’s] behavior displayed marked regression. He was no
longer walking, but crawling on all fours. He was visibly shaking and could
barely talk, instead communicating with grunts and screams. He was in pain
from a mouthful of rotted teeth. He later talked of eating garbage off the
floor out of hunger. Both [David] and [the respondent] were transported to
a hospital for emergency medical attention.’’
6
Josefa also had adopted David’s younger cousin, Jasmine, to whom David
became bonded as a sister.
7
With respect to the dispute over visitation rights, the court made the
following observations: Josefa had tried to maintain a liberal policy of visita-
tion from the time David was placed with her, but visitation sessions quickly
became adversarial. The respondent tried to pick fights with Josefa in front
of David, and the father used his sessions to interrogate David about Josefa’s
care. The Probate Court initially had ordered some overnight supervised
visits with the father at his mother’s home and also ordered supervised
afternoon visitations at Josefa’s home for the father once a week and on a
more flexible schedule for the respondent. Those visits, however, did not
go well, and David became ‘‘fearful, anxious and nervous, manifested by
shaking, vomiting, fevers and weight loss.’’ David reported to the department
‘‘that his father told him Emmanuel was not his ‘real brother’ and that his
father berated him for talking to [the department]. [David] also reported
that his father called grandmother Josefa a ‘monkey’ because of her dark
complexion.’’ The Probate Court suspended all visitations with both parents
on February 7, 2011, until further order of the court. Although the father’s
visitation rights eventually were terminated outright, visitation between
David and the respondent resumed, although limited to two hours on Satur-
day afternoons to be extended at the sole discretion of Josefa. Both parents
continued to file numerous motions regarding visitation, both with the Pro-
bate Court and in the Superior Court. The respondent stopped exercising
her court-ordered supervised visitation in early 2013, telling the department
that she did not get along with Josefa and wanted nothing to do with her.
8
As previously indicated, the Probate Court had granted termination of
parental rights on this additional ground, although it was not expressly
alleged in the original petition filed by Josefa. Again, the respondent has
raised no issue regarding the amendment of the petition or challenged the
grounds on which the petition was granted by the trial court.
9
As the court informed the parties at the hearing on the motion to substi-
tute, because the underlying Probate Court petition was not heard on the
record as defined in General Statutes § 45a-186a, the trial court was obligated
to conduct a trial de novo prior to ruling on the merits of the petition. See
Baskin’s Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984)
(recognizing that ‘‘an appeal from probate is a de novo proceeding in which
the Superior Court is not limited to the claims raised in the Probate Court’’).
10
We respectfully disagree with the concurring opinion’s assertion that
our reliance on §§ 52-599 or 46b-121 is dicta. In our view, our consideration
of these provisions and the policies that underlie them is necessary in light
of the lack of a specific statutory or Practice Book provision that squarely
authorizes the Superior Court to grant a motion to substitute a petitioner
in this type of proceeding. Indeed, the concurring opinion does not cite to
any authority that explicitly authorizes the court to grant a motion to substi-
tute. In the absence of such explicit authority, we conclude that it is both
appropriate and necessary to draw on other legal authority from which such
power can be inferred.
Furthermore, we disagree with the concurring opinion’s suggestion that
we have reached a legal issue that the parties did not have a full and fair
opportunity to address. In resolving a claim raised by the parties, we are
not required to constrain our analysis to the law relied on by the parties.
See Michael T. v. Commissioner of Correction, 319 Conn. 623, 635 n.7, 126
A.3d 558 (2015); see also State v. Santiago, 319 Conn. 935, 939–40, 125 A.3d
520 (2015) (‘‘when [a case] is properly before the court, the court is not
limited to the particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper construction
of governing law’’ [internal quotation marks omitted]). In the present case,
the claim raised by the respondent is that the court lacked authority to
grant a motion to substitute the new guardian as the petitioner. The respon-
dent’s failure to discuss all relevant sources of authority does not preclude
us from considering them. Indeed, we are obligated to do so in resolving
her claim.
11
Even if the respondent had preserved this argument for review, it is
unlikely she would have prevailed on its merits. In support of her argument
that the court lacked authority to grant the motion to substitute, the respon-
dent refers us to Practice Book § 34a-1. See footnote 3 of this opinion.
Practice Book § 34a-1 sets forth the provisions of our rules of practice that
are applicable ‘‘in juvenile matters,’’ which includes ‘‘appeals from probate
concerning . . . termination of parental rights’’ such as the present matter.
See General Statutes § 46b-121. The respondent contends that Emma’s
motion to substitute was filed pursuant to Practice Book § 9-20, and that
because that section is not one of the provisions set forth in Practice Book
§ 34a-1, the court lacked authority to hear the motion. That argument is
unpersuasive, however, for several reasons. First, Practice Book § 34a-1
contains no language suggesting that the enumerated provisions are an
exhaustive list or that a court hearing a juvenile matter otherwise lacks
authority to apply or rely upon other provisions if required for the due
administration of justice. Second, Practice Book § 9-20 was not cited in
Emma’s motion to substitute nor was it invoked at the hearing on the motion.
Third, Practice Book § 9-20 is inapposite to the present situation because
it relates to substitution in an action commenced in the name of a wrong
person, which is not the issue here. Fourth, Practice Book § 9-22, which
also addresses generally the addition and substitution of parties, is one of
the provisions included in Practice Book § 34a-1 as applicable to juvenile
matters. Fifth, and finally, as we already have discussed with respect to the
respondent’s first argument, General Statutes § 46b-121 (b) (1) gives broad
authority to judges in juvenile matters to make any order that ‘‘the court
deems necessary or appropriate to secure the welfare, protection, proper
care and suitable support of a child . . . .’’