In re Adrian K. ( 2019 )

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IN RE ADRIAN K.*
(AC 42633)
Keller, Bright and Devlin, Js.
Syllabus
The respondent father, whose minor child, A, previously had been adjudi-
cated neglected, appealed to this court from the judgment of the trial
court denying his motion to dismiss an order of temporary custody and
modifying the dispositive order from protective supervision with the
respondent mother to commitment to the custody of the petitioner,
the Commissioner of Children and Families. After the trial court had
adjudicated A neglected, it had ordered placement of A with the mother
with protective supervision. The petitioner thereafter placed a ninety-
six hour hold on A and filed a motion for an order of temporary custody,
which was granted ex parte. The court scheduled a preliminary hearing
on the order for temporary custody, and the petitioner filed a motion to
modify the dispositive order from protective supervision to commitment.
The trial court sustained the order of temporary custody and denied
the father’s motion to dismiss, and the father appealed to this court. Held:
1. The respondent father could not prevail on his claim that the trial court
improperly denied his motion to dismiss the order of temporary custody,
which was based on his claim that the trial court’s subject matter jurisdic-
tion ended when protective supervision expired on December 6, 2018,
and that the court’s jurisdiction was not continued as a result of the
petitioner’s failure to file a timely motion to modify as required under
the applicable rule of practice (§ 33a-6 [c]), which provides that a motion
to modify protective supervision shall be filed no later than the next
business day before a preliminary hearing on an ex parte custody order:
the father’s claim that the trial court’s subject matter jurisdiction was
limited by § 33a-6 (c) was unavailing, as rules of practice do not and
cannot create or circumscribe jurisdiction, and, thus, whether the timing
requirement of § 33a-6 (c) is mandatory or directory and whether the
motion to modify protective supervision was timely filed are irrelevant
to the question of whether the trial court had subject matter jurisdiction
to sustain the order of temporary custody; moreover, on the basis of
the plain language of the relevant statute (§ 46b-129 [b]), which provides
that a motion for an order of temporary custody may be granted subse-
quent to the filing of a neglect petition, as had occurred in the present
case, the court had jurisdiction to enter an ex parte order of temporary
custody, as the neglect petition was pending when the order of temporary
custody was signed, and the fact that a new petition was not filed with
the motion for order of temporary custody was irrelevant, and although
§ 46b-129 is silent as to whether an order of temporary custody modifies
an order of protective supervision, given the purposes underlying § 46b-
129 and the clear language of the statute (§ 46b-121 [b] [1]) that gives
the petitioner authority to enter orders regarding the protection and
proper care of a child, an order of temporary custody issued pursuant
to § 46b-129 (b) necessarily suspends or interrupts a period of protective
supervision, such that previously ordered protective supervision cannot
expire and terminate the underlying neglect petition while the order of
temporary custody is in place; accordingly, when the order of temporary
custody was granted, it essentially modified the existing period of protec-
tive supervision by suspending it, and the order of temporary custody,
which suspended the order of protective supervision, was ongoing at
the time the motion to modify was filed, and, therefore, the court had
subject matter jurisdiction over the order of temporary custody when
the petitioner subsequently filed the motion to modify the disposition.
2. The respondent father could not prevail on his claim that the court’s
denial of his motion to dismiss violated his rights to substantive and
procedural due process, which was based on his unpreserved claims
that the court’s interpretation of the applicable rule of practice (§ 33a-
6 [c]) as directory rather than mandatory created jurisdiction, thereby
leaving A in the petitioner’s care in violation of his right to family
integrity, and deprived him of timely notice, as he failed to demonstrate
the existence of a constitutional violation pursuant to State v. Golding
(213 Conn. 233): because the trial court, pursuant to statute (§ 46b-129
[b]), had ongoing jurisdiction to rule on the order of temporary custody
even though neither a new neglect petition nor a motion to modify had
been filed by December 6, 2018, and because Practice Book § 33a-6 (c)
could not confer or circumscribe the court’s jurisdiction, the father’s
substantive due process rights were not violated; moreover, the court
did not deprive the father of his right to family integrity and timely
notice because although he has a vital interest in directing the care and
custody of his biological child, the court’s decision to allow the petitioner
to file a motion to modify one day late did not deprive the father of
procedural due process or create a substantial risk of erroneous depriva-
tion of the private interest of the father, who had notice of the ex parte
order of temporary custody in advance of the preliminary hearing, was
represented by counsel and had an opportunity to be heard and to
contest fully the order of temporary custody and motion to modify
before the court sustained the order of temporary custody and modified
disposition to commitment.
Argued May 29—officially released July 18, 2019**
Procedural History
Petition to adjudicate the respondents’ minor child
neglected, brought to the Superior Court in the judicial
district of Middletown, Juvenile Matters, where the
court, Woods, J., adjudicated the child neglected and
ordered protective supervision; thereafter, the court,
Sanchez-Figueroa, J., issued ex parte orders granting
temporary custody of the child to the petitioner; subse-
quently, the petitioner filed a motion to open and modify
the disposition; thereafter, the court, Sanchez-Figue-
roa, J., sustained the orders of temporary custody and
denied the respondent father’s motion to dismiss, and
the respondent father appealed to this court. Affirmed.
Karen Oliver Damboise, for the appellant (respon-
dent father).
Carolyn A. Signorelli, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, and Benjamin Zivyon, assistant attorney gen-
eral, for the appellee (petitioner).
Christopher DeMatteo, for the minor child.
Opinion
BRIGHT, J. The respondent father, Luis K.,1 appeals
from the judgment of the trial court denying his motion
to dismiss an order of temporary custody and modifying
the dispositive order from protective supervision with
the mother to commitment to the custody of the peti-
tioner, the Commissioner of Children and Families. The
respondent claims that (1) the court improperly denied
his motion to dismiss the order of temporary custody
for lack of subject matter jurisdiction, and (2) the
court’s denial of his motion to dismiss violated his right
to due process under the fourteenth amendment to the
United States constitution. We disagree and, accord-
ingly, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant. On November 29, 2017, the petitioner filed a
neglect petition on behalf of the infant minor child. An
addendum to the petition stated that the mother had
used poor judgment by leaving the child alone in a car
with the respondent, who had physically abused the
child in October, 2017, despite the ‘‘clear recommenda-
tion’’ of the Department of Children and Families
(department) that the respondent be supervised at all
times when he was with the child. The child was adjudi-
cated neglected on March 6, 2018. The court, Woods,
J., ordered placement of the child with the mother with
six months of protective supervision until September
6, 2018. Specific steps for the respondent and the
mother were ordered. On April 10, 2018, the respondent
was convicted of risk of injury to a child and assault
in the third degree arising out of his physical abuse of
the child in October, 2017. At the respondent’s sentenc-
ing, the court issued a standing criminal protective
order prohibiting the respondent from having any con-
tact with the child until January 1, 2083. On August
2, 2018, the court, Sanchez-Figueroa, J., granted the
petitioner’s motion to extend protective supervision of
the child in the mother’s custody until December 6,
2018. Following an in-court review on November 1,
2018, the court ordered that full custody was vested
with the mother and confirmed that the period of pro-
tective supervision would expire on December 6, 2018.
On November 26, 2018, the department received a
new referral alleging that the mother was engaging in
substance abuse and was allowing the respondent
access to the child. After an investigation, the petitioner,
pursuant to General Statutes § 17a-101g, placed a
ninety-six hour hold on the child and removed him
from the mother’s custody. On November 29, 2018, the
petitioner filed a motion for an order of temporary
custody, which was granted ex parte that same day.2 A
preliminary hearing was scheduled for December 7,
2018. In light of the order of temporary custody, the
petitioner, pursuant to Practice Book § 33a-6 (c),3
should have filed a motion to modify protective supervi-
sion at least one business day prior to the preliminary
hearing. The petitioner, however, did not file a motion
to open and modify the dispositional order of protective
supervision to commitment until the morning of the
hearing on December 7, 2018.
At the December 7, 2018 preliminary hearing, the
respondent argued that protective supervision had
expired on December 6, 2018, the motion to modify
was filed one day late according to Practice Book § 33a-
6 (c), and that ‘‘as of today, there is no underlying
neglect petition that accompanies this order . . . of
temporary custody . . . . Therefore, we would argue
that the court does not have jurisdiction, as there is no
underlying neglect petition and the department did not
file any such motion to modify protective supervision,
pursuant to this Practice Book section within the time
period specified in that Practice Book section.’’
The court sustained the order of temporary custody
without prejudice until further order of the court. The
court allowed the respondent, who was represented by
counsel, time to brief his jurisdictional argument. The
respondent filed a motion to dismiss on December 21,
2018. Following a hearing, the court denied the motion
to dismiss on January 17, 2019, reasoning that Practice
Book § 33-6a (c) is directory and that the court had
jurisdiction to act on the motion for an order of tempo-
rary custody. The court stated that the fact that the
motion for an order of temporary custody was granted
on November 29, 2018, further solidified the court’s
subject matter jurisdiction because the order of tempo-
rary custody was filed and signed while the existing
neglect petition was still active, and the motion for an
order of temporary custody served as a ‘‘tacit request
to modify the disposition of the protective supervision.’’
After a contested hearing, the court, on February 19,
2019, sustained the order of temporary custody and
committed the child to the care and custody of the
petitioner. The court found that the child would be in
immediate physical danger from his surroundings if he
were returned to the care and custody of the mother
or the respondent. The court noted that the respondent
could not have custody of the child due to his incarcera-
tion, and that the mother had not reached a level of
understanding to make sure the child was kept safe
and away from the respondent when he is released from
incarceration. This appeal followed.
I
The respondent claims that the court improperly
denied his motion to dismiss. He contends that the
court’s subject matter jurisdiction ended when protec-
tive supervision expired on December 6, 2018, and that
the only mechanism to continue the court’s jurisdiction
was for the petitioner to file a timely motion to modify.
He argues that there was no pending controversy
because the petitioner’s motion to modify was filed
untimely on the day of the preliminary hearing in contra-
vention of what the respondent argues is a mandatory
requirement of Practice Book § 33a-6 (c) to file such a
motion one business day before the preliminary hear-
ing.4 We do not agree.
‘‘[I]t is well established that, in determining whether
a court has subject matter jurisdiction, every presump-
tion favoring jurisdiction should be indulged. . . .
When reviewing an issue of subject matter jurisdiction
on appeal, [w]e have long held that because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion is a question of law, our review is plenary. . . .
Subject matter jurisdiction involves the authority of the
court to adjudicate the type of controversy presented
by the action before it . . . . [A] court lacks discretion
to consider the merits of a case over which it is without
jurisdiction. . . . The subject matter jurisdiction
requirement may not be waived by any party, and also
may be raised by a party, or by the court sua sponte,
at any stage of the proceedings, including on appeal.’’
(Citation omitted; internal quotation marks omitted.)
Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d
102 (2012).
The respondent’s claim is premised, in part, on his
argument that Practice Book § 33a-6 (c) acts as a limit
on the court’s subject matter jurisdiction. In particular,
he argues that ‘‘[b]y [the petitioner] failing to file the
motion [to modify protective supervision] within the
mandatory time frame prescribed by . . . [§ 33a-6 (c)],
the court lacked jurisdiction to continue to preside over
the matter.’’ The respondent’s reliance on a Superior
Court rule of practice is misplaced. The law is clear
that rules of practice adopted by our courts do not
and cannot create or circumscribe jurisdiction. General
Statutes § 51-14 (a) explicitly provides that the rules
adopted by the justices of the Supreme Court, the judges
of the Appellate Court and the judges of the Superior
Court ‘‘shall not abridge, enlarge or modify any substan-
tive right or the jurisdiction of any of the courts.’’ See
also State v. Reid, 277 Conn. 764, 776 n.14, 894 A.2d
963 (2006); State v. Carey, 222 Conn. 299, 307, 610 A.2d
1147 (1992). Consequently, whether the timing require-
ment of § 33a-6 (c) is mandatory or directory and
whether the motion to modify protective supervision
was timely filed are irrelevant to the question of whether
the court had subject matter jurisdiction to sustain the
order of temporary custody.
The real crux of the respondent’s argument is that
because the court-ordered period of protective supervi-
sion ended on December 6, 2018, there was no longer
a neglect petition pending in the court on December 7,
2018, when the court held its preliminary hearing on
the order of temporary custody. According to the
respondent, because the case involving the child ended
on December 6, 2018, and no new neglect petition had
been filed on behalf of the child, there was no statutory
basis for the court to proceed with the hearing.
The petitioner argues that the respondent’s claim is
legally incorrect in that General Statutes § 46b-129 (b)5
specifically provides that a motion for an order of tem-
porary custody may be granted subsequent to a neglect
petition, which is what occurred in this case. According
to the petitioner, once the motion was granted, the court
maintained continuing jurisdiction to conduct further
hearings on it. The petitioner further argued in opposi-
tion to the respondent’s motion to dismiss in the trial
court that ‘‘an [order of temporary custody], by its
nature, modifies a custodial order. It removes custody
from the parent and vests it in the [petitioner] in this
case. Therefore, the . . . custody of the child that was
vested in the parent under protective supervision, has
been modified. That protective supervision order itself
has been modified. The custodial portion of that has
been changed to vest that custody in the petitioner.’’
The petitioner also relies on General Statutes § 46b-
121 (b) (1), which provides, in relevant part, that ‘‘[i]n
juvenile matters, the Superior Court shall have authority
to make and enforce such orders directed to parents
. . . as the court deems necessary or appropriate to
secure the welfare, protection, proper care . . . of a
child subject to the court’s jurisdiction or otherwise
committed to or in the custody of the [petitioner].’’
According to the petitioner, this statute gave the court
authority to enter orders regarding the child, who was,
at the time, in the petitioner’s custody. We agree with
the petitioner.
On the basis of the plain language of § 46b-129 (b),
there is no question that the court had jurisdiction to
enter the November 29, 2018 ex parte order of tempo-
rary custody and schedule a hearing on the order. Sec-
tion 46b-129 (b) provides that an order of temporary
custody may arise ‘‘from the specific allegations of the
petition and other verified affirmations of fact accompa-
nying the petition and application, or subsequent
thereto . . . .’’ (Emphasis added.) The language ‘‘or
subsequent thereto’’ clearly indicates that the legisla-
ture envisioned situations wherein a child’s circum-
stances may change subsequent to the filing of a neglect
petition, thereby requiring the filing of a motion for an
order of temporary custody. Therefore, the court may
grant a motion for an order of temporary custody subse-
quent to the filing of a neglect petition. In the present
case, the neglect petition was still pending when the
order of temporary custody was signed on November
29, 2018, and the fact that a new neglect petition was
not filed with the motion for an order of temporary
custody is not relevant. In fact, before the trial court,
the respondent conceded that, at the time it was issued,
the November 29, 2018 order of temporary custody ‘‘was
a valid order.’’
The key issue then becomes whether the order of
protective supervision expired on December 6, 2018,
thereby ending the pending neglect petition, or whether,
in essence, it was modified by the trial court’s issuance
of the ex parte order of temporary custody on Novem-
ber 29, 2018. We note that § 46b-129 is silent as to
whether an order of temporary custody in any way
modifies an order of protective supervision. Neverthe-
less, logic, the purposes underlying § 46b-129, and the
clear language of § 46b-121 (b) (1) lead us to conclude
that an order of temporary custody issued pursuant to
§ 46b-129 (b) necessarily suspends or interrupts a
period of protective supervision, such that a previously
ordered period of protective supervision cannot expire
and terminate the underlying neglect petition while the
order of temporary custody is in place.
First, logically, protective supervision ceases to exist
when an order of temporary custody issues. Protective
supervision involves the petitioner supervising some-
one else’s, typically a parent’s, custody of the child. In
this case, the mother’s custody of the child was the
subject of the petitioner’s supervision. Once the peti-
tioner took custody of the child pursuant to the ninety-
six hour hold, the petitioner was no longer supervising
the mother’s custody, but had assumed temporary cus-
tody of the child pending further order of the court.
Consequently, as a matter of fact, at that point in time,
the disposition of protective supervision had been modi-
fied and interrupted.
Second, the respondent’s position would lead to
bizarre results at odds with protecting a child suffering
from serious physical illness or serious physical injury
or who is in immediate physical danger, which is the
purpose of orders issued pursuant to § 46b-129 (b). For
example, under the respondent’s analysis, if the ninety-
six hour hold had been invoked by the petitioner at
11:59 p.m. on December 6, 2018, the petitioner would
have been required to return the child to the mother
at 12:01 a.m. on December 7, 2018, because the period
of protective supervision would have ended. Thus, the
petitioner would have been required to return the child
to the same unsafe circumstance she had removed the
child from just minutes before. We will not conclude
that the legislature intended such an absurd result. See,
e.g., In re Corey E., 40 Conn. App. 366, 373–74, 671
A.2d 396 (1996) (rejecting interpretation of statute that
would lead to ‘‘bizarre’’ result of forcing department to
return child to parent whose neglect caused commit-
ment); In re Adrien C., 9 Conn. App. 506, 512, 519 A.2d
1241 (rejecting interpretation of statute that would lead
to return of child to ‘‘what could be a hostile, unsafe
and dangerous environment’’), cert. denied, 203 Conn.
802, 522 A.2d 292 (1987).
In reaching this conclusion we find instructive the
Superior Court case of In the Interests of Felicia B.,
Superior Court, judicial district of Middletown, Docket
Nos. FO4-CP-000291, FO4-CP-000292, FO4-CP-003125,
FO4-CP-003126, FO4-CP-003373 (April 21, 1999) (Quinn,
J.), which addressed the interplay of orders of protec-
tive supervision and orders of temporary custody on
facts similar to those in the present case. In Felicia B.,
five children were adjudicated neglected and, on August
5, 1998, placed with their mother under protective
supervision, which was set to expire on March 5, 1999.
Ex parte orders of temporary custody were then issued
on September 18, 1998, and a hearing was scheduled
for September 24, 1998. The hearing did not go forward
on that date and eventually was scheduled to proceed
on March 18, 1999. At that time, the respondent moved
to dismiss the orders of temporary custody because the
period of protective supervision ended on March 5,
1999, thereby depriving the court of subject matter juris-
diction. The court rejected the respondent’s argument.
It first noted that ‘‘[c]ustody of the [children] with [the
petitioner] is inherently contradictory to orders leaving
the children with their mother under protective supervi-
sion. The [orders of temporary custody] must therefore
either have terminated or suspended the earlier orders
of protective supervision.’’ Using tenets of statutory
construction, the court interpreted the conflicting
orders harmoniously and concluded that the orders of
temporary custody suspended the orders of protective
supervision. The court determined that ‘‘the date pro-
vided for the expiration of the orders of protective
supervision, March 5, 1999, was merely a courtesy
extended by the court to compute the six month period
and not the controlling jurisdictional date.’’ The court
denied the respondent’s motion to dismiss and con-
cluded that the orders of temporary custody suspended
the period of protective supervision such that there
were still four and one half months remaining on the
protective supervision orders, meaning that the court
continued to have subject matter jurisdiction.
We agree with the trial court’s approach in Felicia
B., to harmonize the conflicting orders. In the present
case, the order of temporary custody, which placed the
child temporarily in the custody of the petitioner, and
the order of protective supervision, which placed the
child in the custody of the mother, cannot coexist. Real-
istically, the petitioner’s ninety-six hour hold on the
child followed by the court’s order of temporary cus-
tody, both of which occurred prior to the expiration of
protective supervision, had the effect of removing the
child from the care and custody of the mother. Accord-
ingly, when the order of temporary custody was
granted, it essentially modified the existing period of
protective supervision by suspending it. The order of
temporary custody, which suspended the order of pro-
tective supervision, was ongoing at the time the motion
to modify was filed. Therefore, the court had subject
matter jurisdiction over the order of temporary custody
when the petitioner subsequently filed the motion to
modify the disposition.
We further note that § 46b-121 (b) (1) provides in
relevant part: ‘‘In juvenile matters, the Superior Court
shall have authority to make and enforce such orders
directed to parents . . . as the court deems necessary
or appropriate to secure the welfare, protection, proper
care and suitable support of a child subject to the court’s
jurisdiction or otherwise committed to or in the custody
of the [petitioner]. . . .’’ Even if we were to conclude,
which we do not, that the protective supervision
expired on December 6, 2018, and the underlying
neglect petition had been terminated, the trial court
nonetheless had the authority to issue an order of tem-
porary custody pursuant to § 46b-121 (b) (1) to protect
the child who was ‘‘otherwise . . . in the custody of
the [petitioner].’’
On the basis of the foregoing, we conclude that the
trial court had jurisdiction over the order of temporary
custody. Accordingly, the court properly denied the
respondent’s motion to dismiss.
II
The respondent next claims that his constitutional
rights to (1) substantive and (2) procedural due process
were violated by the court’s denial of his motion to
dismiss. We are not persuaded.
A
The respondent argues that the court’s interpretation
of Practice Book § 33a-6 (c) as being directory improp-
erly created jurisdiction thereby leaving the minor child
in the petitioner’s care in violation of his constitutional
right to family integrity.6 We disagree.
The respondent concedes that this claim is unpre-
served and seeks review under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
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., supra, 781, (modifying third prong of Golding
by eliminating word ‘‘clearly’’).
The record is adequate for review, and the claim,
which involves the custody and care of the respondent’s
biological child, is of constitutional magnitude. See In
re Zoey H., 183 Conn. App. 327, 348, 192 A.3d 522 (‘‘[p]ar-
ents have a substantive right under the [d]ue [p]rocess
[c]lause to remain together [with their children] without
the coercive interference of the awesome power of the
state’’ [internal quotation marks omitted]), cert. denied,
330 Conn. 906, 192 A.3d 425 (2018). Therefore, the claim
is reviewable.
Regarding the third prong of Golding, we conclude,
however, that the alleged constitutional violation does
not exist. Interpreting Practice Book § 33a-6 (c) as
directory does not expand the trial court’s jurisdiction
because, as we stated in part I of this opinion, the rules
of practice cannot confer or circumscribe the court’s
jurisdiction. Under § 46b-129 (b), the trial court had
ongoing jurisdiction to rule on the order of temporary
custody even though neither a new neglect petition nor
a motion to modify had been filed by December 6, 2018.
Accordingly, the respondent’s substantive due process
rights were not violated.
B
The respondent next argues that by failing to interpret
Practice Book § 33a-6 (c) as being mandatory, the court
deprived him of his right to family integrity and timely
notice. The respondent’s claim meets the first two
prongs of Golding for the same reasons as stated in
part II A of this opinion and, therefore, is reviewable.
The respondent’s claim fails to satisfy the third prong
of Golding because the alleged constitutional violation
does not exist.
‘‘The United States Supreme Court established a
three-pronged balancing test in Mathews [v. Eldridge,
424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)]
to determine what safeguards the federal constitution
requires to satisfy procedural due process. Courts apply
that balancing test when the state seeks to terminate
parental rights. . . . The three factors to be consid-
ered 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. [Id.,
335.]’’ (Citations omitted.) In Re Shaquanna M., 61
Conn. App. 592, 606, 767 A.2d 155 (2001).
Under the first factor, the respondent has a vital inter-
est in directing the care and custody of his biological
child. 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’’). We are not persuaded, under
the second factor, that the court’s exercise of its discre-
tion to permit the department to file a motion to modify
one day late created a substantial risk of an erroneous
deprivation of the respondent’s private interest. The
respondent had notice of the ex parte order of tempo-
rary custody in advance of the preliminary hearing. He
was represented by counsel and had an opportunity to
be heard at the preliminary hearing. Furthermore, the
respondent had an opportunity to contest fully the order
of temporary custody and the motion to modify the
disposition before the court sustained the order of tem-
porary custody and modified disposition to commit-
ment on February 19, 2019. Regarding the third factor,
‘‘the express public policy of this state [is] to provide
all of its children a safe, stable nurturing environment.’’
State v. Anonymous, 179 Conn. 155, 171, 425 A.2d
939 (1979).
In balancing the factors, we conclude that the court’s
decision to accept the petitioner’s motion to modify,
which had been filed one day later than the time set
forth in our rules of practice, when the respondent had
notice of the order of temporary custody over which
the court had jurisdiction, and when the respondent
was afforded an opportunity to contest fully the order
of temporary custody, did not deprive him of his right
to procedural due process. Accordingly, we conclude
that the respondent has not demonstrated the existence
of a constitutional violation.
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 18, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The father is referred to herein as the respondent. The mother, Kali D.,
although also a respondent in the underlying proceedings, did not appeal,
and for convenience is referred to herein as the mother.
2
The court also ordered specific steps, which required, inter alia, that
the mother comply with the lifetime criminal protective order as it pertains
to the respondent and the child.
3
Practice Book § 33a-6 provides in relevant part: ‘‘(a) If the judicial author-
ity finds, based upon the specific allegations of the petition and other verified
affirmations of fact provided by the applicant, that there is reasonable cause
to believe that: (1) the child or youth is suffering from serious physical
illness or serious physical injury or is in immediate physical danger from
his or her surroundings and (2) that as a result of said conditions, the
child’s or youth’s safety is endangered and immediate removal from such
surroundings is necessary to ensure the child’s or youth’s safety, the judicial
authority shall, upon proper application at the time of filing of the petition
or at any time subsequent thereto, either (A) issue an order to the respon-
dents or other persons having responsibility for the care of the child or
youth to appear at such time as the judicial authority may designate to
determine whether the judicial authority should vest in some suitable agency
or person the child’s or youth’s temporary care and custody pending disposi-
tion of the petition, or (B) issue an order ex parte vesting in some suitable
agency or person the child’s or youth’s temporary care and custody.
‘‘(b) A preliminary hearing on any ex parte custody order or order to
appear issued by the judicial authority shall be held as soon as practicable
but not later than ten days after the issuance of such order.
‘‘(c) If the application is filed subsequent to the filing of the petition, a
motion to amend the petition or to modify protective supervision shall be
filed no later than the next business date before such preliminary hearing.’’
4
The attorney for the minor child argued in his appellate brief that the
court improperly denied the respondent’s motion to dismiss because the
expiration of protective supervision deprived the court of subject matter
jurisdiction, and the ex parte order of temporary custody did not interrupt
or toll the period of protective supervision. The attorney for the minor child
adopted the brief of the petitioner as to the respondent’s constitutional
claim, which is addressed in part II of this opinion.
5
Section 46b-129 (b) provides in relevant part: ‘‘If it appears from the
specific allegations of the petition and other verified affirmations of fact
accompanying the petition and application, or subsequent thereto, that there
is reasonable cause to believe that (1) the child or youth is suffering from
serious physical illness or serious physical injury or is in immediate physical
danger from the child’s or youth’s surroundings, and (2) as a result of
said conditions, the child’s or youth’s safety is endangered and immediate
removal from such surroundings is necessary to ensure the child’s or youth’s
safety, the court shall either (A) issue an order to the parents or other
person having responsibility for the care of the child or youth to appear at
such time as the court may designate to determine whether the court should
vest the child’s or youth’s temporary care and custody in a person related
to the child or youth by blood or marriage or in some other person or
suitable agency pending disposition of the petition, or (B) issue an order
ex parte vesting the child’s or youth’s temporary care and custody in a
person related to the child or youth by blood or marriage or in some other
person or suitable agency. A preliminary hearing on any ex parte custody
order or order to appear issued by the court shall be held not later than
ten days after the issuance of such order. . . .’’ (Emphasis added.)
6
The respondent’s purported concern about his right to family integrity
is somewhat curious given that he is prohibited from having any contact
with the child until January 1, 2083.