In re Skylar F. ( 2019 )

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IN RE SKYLAR F.*
(AC 42499)
DiPentima, C. J., and Elgo and Sullivan, Js.
Syllabus
The respondent father appealed to this court from the judgment of the trial
court denying his motion to open the judgment of neglect concerning
the father’s minor child that was rendered after the father was defaulted
for his failure to attend a case status conference. On appeal, the father
claimed that the trial court improperly denied his motion to open because
the record did not support a finding that he received actual adequate
notice of a case status conference in violation of his right to due process
of law. Held:
1. The respondent father could not prevail in his claim that this court should
exercise de novo review pursuant to the test articulated by the United
States Supreme Court in Mathews v. Eldridge (424 U.S. 319), as he
conflated the alleged due process violation in the court’s rendering of
a default judgment at the case status conference with the court’s denial
of his motion to open, from which he appealed to this court; the manifest
purpose of a motion to open a default pursuant to the applicable rule
of practice (§ 35a-18) and statute (§ 52-212) is to provide a mechanism
by which a defaulted party has an opportunity to be heard, and because
the father, by filing the motion to open, invoked his right to due process,
specifically, the right to be heard as to why he failed to appear and
whether he had a good defense, he was afforded a hearing and thereby
exercised his right to due process, and, therefore, this court could not
conclude that the father was deprived of his right to due process and
reviewed the merits of his claim under the abuse of discretion standard
applicable to the appeal of a denial of a motion to open a default
judgment.
2. The trial court did not abuse its discretion in denying the respondent
father’s motion to open the default judgment: the father did not present
a good defense, as the court had expressed concerns over the father’s
substance abuse and domestic violence, and the father addressed neither
concern in his motion to open, and the father did not show that his
failure to appear was the result of mistake, accident or other reasonable
cause, nor did he particularly set forth the reason why he failed to
appear, as the record demonstrated that the father’s attorney was present
when the case status conference was scheduled, had scheduled the case
status conference at a particular time for the father’s convenience, and
did not assert that the father lacked notice of the scheduled court date,
and there was no indication that the father and his attorney were unable
to communicate with each other or that he was unaware of the outcome
of a temporary custody hearing, at which the court scheduled the case
status conference for a time requested by the father through his attorney
and sustained the order of temporary custody; moreover, the father
failed to abide by the requirement of the applicable rule of practice
(§ 35a-18) that his written motion be verified by oath, and given that
the father had actual notice of the fact that a petition of neglect was
filed, was an active participant and was fully represented by counsel in
a contested order of temporary custody hearing, and had elected to be
absent on the day the court issued orders relating to custody of his
child and the scheduling of subsequent proceedings, it was the father’s
burden to keep the court, his attorney and the department informed of
his whereabouts and his intentions with respect to exercising responsi-
bility for his child.
Argued May 16—officially released July 2, 2019**
Procedural History
Petition to adjudicate the respondents’ minor chlid
neglected, brought to the Superior Court in the judicial
district of New Haven, Juvenile Matters, where the
court, Conway, J., issued an ex parte order of tempo-
rary custody and removed the minor child from the
respondents’ care; thereafter, the court, Burke, J., sus-
tained the order of temporary custody; subsequently,
the respondent father was defaulted for failure to
appear; thereafter, the court, Conway, J., rendered
judgment adjudicating the minor child neglected and
committing the minor child to the custody of the peti-
tioner; subsequently, the court, Marcus, J., denied the
respondent father’s motion to open the judgment, and
the respondent father appealed to this court. Affirmed.
Albert J. Oneto IV, assigned counsel, for the appellant
(respondent father).
Renee Bevacqua Bollier, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, and Benjamin Zivyon, assistant attorney gen-
eral, for the appellee (petitioner).
Opinion
ELGO, J. The respondent father appeals from the
judgment of the trial court denying his motion to open
the judgment of neglect that was rendered after the
respondent was defaulted for his failure to attend a
case status conference.1 On appeal, the respondent
claims that the court improperly denied his motion to
open because the record does not support a finding
that he received ‘‘actual adequate notice of the [case
status] conference in violation of his rights to the due
process of law.’’ We disagree and, accordingly, affirm
the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. Skylar was born in September, 2018.
On September 28, 2018, the Department of Children
and Families (department) assumed temporary custody
of Skylar pursuant to a ninety-six hour administrative
hold. On October 1, 2018, the petitioner, the Commis-
sioner of Children and Families, filed a neglect petition
on behalf of Skylar. On that same date, the department
obtained an ex parte order of temporary custody. A
trial on the order of temporary custody was heard by
the court on October 12 and 19, 2018. At the close of
the first day of trial, the respondent received permission
to be excused from attending the second day of trial.
At the close of the second day of trial, the court ruled
from the bench and sustained the order of temporary
custody.
After the court ruled from the bench, the parties
scheduled a case status conference. The following col-
loquy occurred:
‘‘The Clerk: November 27th at nine?
‘‘[The Mother’s Counsel]: I guess so.
‘‘[The Department’s Counsel]: Can [the respondent]
be notified of that date, please, your honor?
‘‘The Court: So ordered.
‘‘[The Respondent’s Counsel]: Actually, is it possible
to get a three o’clock case status conference?
‘‘[The Mother’s Counsel]: That date? No. I have a trial
from two to five.
‘‘[The Respondent’s Counsel]: He won’t be able to
make it that’s a work day. He could lose his job.
‘‘The Court: You try it for a different time?
‘‘The Clerk: We can do December 4th at two.
‘‘[The Respondent’s Counsel]: Is it possible to do
three? . . .
‘‘The Clerk: Would nine o’clock work or no?
‘‘[The Respondent’s Counsel]: No, he’ll be at work.
He works until two so three is—
‘‘The Clerk: So it doesn’t matter what day?
‘‘[The Respondent’s Counsel]. Yes. It has to be three.’’
The case status conference then was scheduled for
December 4, 2018, at 3 p.m. The respondent did not
attend the scheduled case status conference, but his
attorney was present. The department at that time
asked the court to render a default judgment as to the
adjudication of neglect against the respondent for his
failure to appear and to proceed to the disposition of
commitment. The respondent’s attorney objected but
did not indicate that the respondent did not have knowl-
edge of the status conference. Instead, the respondent’s
attorney told the court that the respondent could still
be at work and that he was unable to reach the respon-
dent, who was not answering his phone. On that same
date, the court adjudicated Skylar neglected and com-
mitted her to the care and custody of the petitioner.
On December 31, 2018, the respondent filed a motion
for articulation in which he asked the court to articulate
the factual basis for its order sustaining the ex parte
order of temporary custody. On that same date, the
court issued an articulation, in which it found the fol-
lowing relevant facts: ‘‘At the time of her birth, [Skylar’s
mother and the respondent] had a sibling of Skylar who
had been committed to [the department] and [had] a
pending termination of parental rights matter. Neither
[Skylar’s mother nor the respondent] addressed their
issues that caused the sibling to be committed. . . .
There were two expired orders of protection between
[Skylar’s mother and the respondent]. . . . Prior to
[the sibling’s] removal, [the respondent] reportedly hit
[Skylar’s mother], giving her a bloody nose. Also, [Sky-
lar’s mother] sent [a department social worker] an
e-mail, in June of 2018, stating that she wanted [the
department] to know that she and [the respondent] had
been lying and they had been living together and they
have had domestic violence issues. [Skylar’s mother]
said that [the respondent] hit her and kicked her out
of the home. [Skylar’s mother] would have to sleep on
the front porch or at the hospital [emergency room]
areas. . . . [A department social worker] reported that
for Skylar to be returned, [the respondent] would have
to show that he completed an updated substance abuse
evaluation and domestic violence program. He needs
to avoid domestic violence. There was testimony con-
cerning [the respondent] having a bottle in a paper bag
in his car. [The respondent] testified that it was . . .
nonalcoholic. The court [found] that not credible.’’
On the basis of the credible testimony and evidence
elicited at trial, the court found that the petitioner had
‘‘sustained the burden to prove by a fair preponderance
of the evidence that under the doctrine of predictive
neglect, that as of the date of the ex parte [order of
temporary custody], it was more likely or more proba-
ble than not, that if Skylar were allowed to be placed
in the care of either [Skylar’s mother or the respondent],
independently or in the care of both of them, Skylar
would have been in immediate physical danger from
her surroundings and immediate removal was neces-
sary and continues to be necessary to ensure her
safety.’’ (Emphasis omitted.) Accordingly, the court sus-
tained the ex parte order of temporary custody.
On January 8, 2019, the respondent filed a motion to
open the judgment committing the minor child to the
petitioner’s custody.2 Following a hearing held on Janu-
ary 10, 2019, the court denied the respondent’s motion
to open. First, the court explained that the respondent
had failed to comply with the requirements of Practice
Book § 35a-183 for filing a motion to open in juvenile
matters, as his motion was not verified by oath. Second,
the court considered the transcript of the proceedings
on October 19, 2018, and concluded that the respon-
dent’s attorney was responsible for providing the
respondent with notice of the case status conference.
Third, the court explained that, in its December 31,
2018 articulation, it had specified the reasons why the
order of temporary custody was sustained, and the
respondent’s motion had not demonstrated how those
things had changed. On January 22, 2019, the respon-
dent filed the present appeal from the judgment denying
his motion to open the judgment of neglect.4
On appeal, the respondent claims that he was ‘‘enti-
tled to have the judgment opened as a matter of law
because the record of the proceedings below did not
support a finding that he received actual notice of the
status conference in violation of the due process of
law.’’ We disagree.
As a preliminary matter, the respondent contends
that although ordinarily this court would be constrained
to review a lower court’s decision to deny a motion to
open a default judgment as to whether the court acted
in clear abuse of its discretion, this court should exer-
cise de novo review pursuant to the test articulated by
the United States Supreme Court in Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d
18 (1976).5 The respondent argues that de novo review
pursuant to Mathews is appropriate in cases like this
one where the ‘‘lower court proceedings [show] that a
litigant was denied the due process of law in a matter
customarily left to the lower court’s sound discretion
. . . .’’ Specifically, the respondent contends that he
was deprived of due process of law because he did
not receive ‘‘actual adequate notice’’ of the case status
conference and, thus, he was not given an opportunity
to be heard. We are not persuaded.
To support his contention that this court should apply
the balancing test in Mathews to this case, the respon-
dent cites to this court’s decision in In Re Shaquanna
M., 61 Conn. App. 592, 767 A.2d 155 (2001). In that case,
the issue was ‘‘[w]hether the denial of a continuance
[had] been shown by the respondent to have interfered
with her basic constitutional right to raise her children,
thereby depriving her of procedural due process . . . .’’
Id., 600. The court in In Re Shaquanna M. explained
that ‘‘the difference in the two analyses [of the abuse
of discretion standard and the Mathews balancing test]
relates to the lack of discretion involved in providing
procedural safeguards to satisfy procedural due process
when dealing with the irrevocable severance of a par-
ent’s rights, as opposed to the presence of discretion
in granting or denying a continuance in the garden vari-
ety civil case with its lesser standard of proof.’’ Id., 605.
The respondent’s reliance on In Re Shaquanna M.
is misplaced. The respondent claims that he did not
receive ‘‘actual adequate notice’’ of the case status con-
ference, at which the default judgment was rendered.
The issue on appeal, however, is the trial court’s denial
of the respondent’s motion to open. The respondent
asserts that, as a matter of law, the trial court was
required to grant the motion to open. As such, he con-
flates the alleged due process violation in the court’s
rendering a default judgment at the case status confer-
ence with the court’s denial of his motion to open. The
respondent contends that he ‘‘was given no opportunity
to be heard in connection with the neglect petition,’’
but that assertion is plainly incorrect. The manifest
purpose of a motion to open a default pursuant to Prac-
tice Book § 35a-18 and General Statutes § 52-212 is to
provide a mechanism by which a defaulted party has
an opportunity to be heard. By filing the motion to
open, the respondent invoked his right to due process,
specifically, the right to be heard as to why he failed
to appear and whether he had a good defense. Accord-
ingly, the denial of a motion to open is inherently differ-
ent from a denial of a motion for a continuance, which
was the motion at issue in In Re Shaquanna M., or a
motion for an evidentiary hearing, which was the
motion at issue in Mathews. In Re Shaquanna M., supra,
61 Conn. App. 605.
In his brief, the respondent launches into a Mathews
balancing test analysis focused solely on the circum-
stances of the case status conference, but provides no
analysis of the court’s consideration and disposition of
the motion to open, from which he has taken this appeal.
With respect to the motion to open, the burden was on
the respondent to show reasonable cause or that a
defense existed in whole or in part, and that there was
reasonable cause that prevented him from appearing.
Practice Book § 35a-18; see also General Statutes § 52-
212 (a). The respondent’s failure to meet that burden,
as discussed more fully later in this opinion, does not
obviate the fact that, by filing the motion to open, he
was afforded a hearing and, thereby, exercised his right
to due process. Under such circumstances, we cannot
conclude that the respondent was deprived of his right
to due process. We, therefore, review the merits of
the respondent’s claim under the abuse of discretion
standard applicable to the appeal of a denial of a motion
to open a default judgment.
‘‘To open a default judgment, a moving party must
show reasonable cause, or that a good cause of action
or defense in whole or in part existed at the time of
the rendition of the judgment or the passage of the
decree, and that the plaintiff or defendant was pre-
vented by mistake, accident or other reasonable cause
from prosecuting the action or making the defense.
General Statutes § 52-212 (a). Furthermore, § 52-212 (b)
requires that [t]he complaint or written motion shall be
verified by the oath of the complainant or his attorney,
shall state in general terms the nature of the claim or
defense and shall particularly set forth the reason why
the plaintiff or defendant failed to appear. It is thus
clear that to obtain relief from a judgment rendered
after a default, two things must concur. There must be
a showing that (1) a good defense, the nature of which
must be set forth, existed at the time judgment was
rendered, and (2) the party seeking to set aside the
judgment was prevented from making that defense
because of mistake, accident or other reasonable cause.
. . . Since the conjunctive and meaning in addition to
is employed between the parts of the two prong test,
both tests must be met.’’ (Citation omitted; internal
quotation marks omitted.) In re Ilyssa G., 105 Conn.
App. 41, 45–46, 936 A.2d 674 (2007), cert. denied, 285
Conn. 918, 943 A.2d 475 (2008).
‘‘Our review of a court’s denial of a motion to open
. . . is well settled. We do not undertake a plenary
review of the merits of a decision of the trial court to
grant or to deny a motion to open a judgment. . . . In
an appeal from a denial of a motion to open a judgment,
our review is limited to the issue of whether the trial
court has acted unreasonably and in clear abuse of its
discretion. . . . In determining whether the trial court
abused its discretion, this court must make every rea-
sonable presumption in favor of its action. . . . The
manner in which [this] discretion is exercised will not
be disturbed so long as the court could reasonably
conclude as it did.’’ (Internal quotation marks omitted.)
Id., 45.
As the trial court correctly observed, the respondent
in the present case met neither of the two prongs
required for the court to open the judgment of default.
As to the first prong, the respondent did not present a
good defense. In his motion to open, the respondent
averred that he had ‘‘a home and child care and [was]
completely prepared to take the child home and into
his care.’’ In its articulated decision sustaining the order
of temporary custody, which was tried to the court just
a few months prior to the date on which the respondent
filed his motion to open, the court stated that there
was evidence put on by the petitioner regarding con-
cerns over the respondent’s substance abuse and
domestic violence. The respondent addressed neither
concern in his motion to open.
As to the second prong, the respondent did not show
that his failure to appear was the result of mistake,
accident or other reasonable cause, nor did he ‘‘particu-
larly set forth the reason why [he] failed to appear.’’
Practice Book § 35a-18; see also General Statutes § 52-
212 (a) and (c). Instead, the respondent simply asserted
in his motion to open that he did not receive notice of
the case status conference. The record before this court
demonstrates that the respondent’s attorney was pre-
sent when the case status conference was scheduled;
indeed, the respondent’s attorney scheduled the case
status conference for 3 p.m. for the respondent’s conve-
nience.6 Furthermore, at the case status conference, the
respondent’s attorney did not assert that the respondent
lacked notice of the scheduled court date. Rather, the
reaction of the respondent’s attorney, who asserted that
the respondent could still be at work because the
respondent was not answering his phone, suggests that
he expected the respondent to be present at the case
status conference. Moreover, the record is devoid of any
indication that the respondent’s attorney was unable
to contact his client after the second day of trial, which
the respondent specifically sought to be excused from
attending. There is no indication that the respondent
and his attorney were unable to communicate with each
other or that the respondent was unaware of the out-
come of the order of temporary custody hearing, at
which time the court not only scheduled the case status
conference for a time requested by the respondent
through his attorney, but more importantly, sustained
the order of temporary custody as to his child.
It is important to note that the circumstances of this
case contrast with default judgments in which a party
has never appeared in court following a finding of notice
at the commencement of a case. This case is one in
which the respondent had actual notice of the fact that
a petition of neglect was filed, was an active participant
and fully represented by counsel in a contested order
of temporary custody hearing, and elected to be absent
on the day the court issued orders relating to custody of
his child and the scheduling of subsequent proceedings.
Under such circumstances, it is the burden of the
respondent to keep the court, his attorney and the
department informed of his whereabouts and his inten-
tions with respect to exercising responsibility for his
child. See In re Ilyssa G., supra, 105 Conn. App. 49
(‘‘regardless of whether it was intentional or the result
of negligence, the respondent’s failure to keep the court,
the department and his attorney informed of his where-
abouts does not qualify for purposes of opening a
default judgment as a mistake, accident or other reason-
able cause that prevented the respondent from pre-
senting a defense’’).7 Accordingly, the respondent has
not demonstrated how his failure to appear was the
result of mistake, accident or other reasonable cause.
Furthermore, the respondent failed to abide by the
requirement that his motion be verified by oath. Prac-
tice Book § 35a-18 mandates that the written motion
‘‘shall be verified by the oath of the complainant.’’ The
respondent failed to meet that basic requirement.
Because the respondent failed to meet either prong
required for the court to open the judgment of default
and further failed to have his motion verified by oath,
we conclude that the court did not abuse its discretion
in denying his motion to open the judgment.
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 2, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
A default judgment also was rendered against Skylar’s mother for her
failure to appear at the case status conference, but she is not a party to
this appeal. We therefore refer to the respondent father as the respondent
in this opinion.
2
The respondent’s motion to open consisted in its entirety of the following:
‘‘Pursuant to Practice Book § 17-4 [the respondent] moves this court to open
the judgment by this [court] of committing the child to the care and custody
of the department. In support of this motion, [the respondent] further states
the following: 1. [The respondent] never received notice of the case status
conference. 2. [The respondent] has a home and child care and is completely
prepared to take the child home and into his care. 3. That it is in the
best interests of the child to open the judgment and place the child with
[the respondent].’’
3
Practice Book § 35a-18 provides in relevant part: ‘‘Any order or decree
entered through a default may be set aside within four months succeeding
the date of such entry of the order or decree upon the written motion of
any party or person prejudiced thereby, showing reasonable cause, or that
a defense in whole or in part existed at the time of the rendition of such
order or of such decree, and that the party so defaulted was prevented by
mistake, accident or other reasonable cause from prosecuting or appearing
to make the same, except that no such order or decree shall be set aside
if a final decree of adoption regarding the child has been issued prior to
the filing of any such motion. Such written motion shall be verified by the
oath of the complainant and shall state in general terms the nature of the
claim or defense and shall particularly set forth the reason why the party
failed to appear.’’
4
Pursuant to Practice Book § 67-13, the attorney for the minor child filed
a statement adopting the brief of the petitioner in this appeal.
5
Our Supreme Court has recognized that ‘‘[t]he United States Supreme
Court [in Mathews v. Eldridge, supra, 424 U.S. 335] [has] set forth three
factors to consider when analyzing whether an individual is constitutionally
entitled to a particular judicial or administrative procedure: First, the private
interest that will be affected by the official action; second, the risk of
erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards;
and finally, the Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute proce-
dural requirement would entail.’’ (Internal quotation marks omitted.) In re
Jonathan M., 255 Conn. 208, 226 n.20, 764 A.2d 739 (2001).
6
The respondent acknowledges that, ‘‘[u]nder the law of agency, a court,
under appropriate circumstances, may default a party for his failure to
appear for a scheduled proceeding if the party’s attorney had knowledge
of the proceeding, on the theory that a party is presumed to know that
which is known to his attorney.’’ The respondent also acknowledges that the
standing orders for juvenile matters direct that counsel ‘‘shall, as necessary,
inform each client of the date and time of each court matter.’’ (Emphasis
omitted; internal quotation marks omitted.) The respondent nonetheless
attempts to shift the burden of notice to the court and argues that it was
the court’s responsibility to notify the respondent of the case status confer-
ence date because, ‘‘[f]aced with an unclear and ambiguous order of notice,
[the respondent’s] counsel would have been justified in believing that he
had been relieved of any obligation he may have had under the standing
orders to notify his client of the status conference.’’ We are not persuaded.
We fail to see how the court’s agreement that the respondent should be
notified of the case status conference pursuant to the department’s request
relieves the respondent’s attorney from his independent responsibility, under
the theory of agency and pursuant to the standing orders for juvenile matters,
to provide notice to his client.
7
To the extent that the respondent did not receive notice of the case
status conference from his attorney because of his own negligence in not
staying in contact with his attorney, ‘‘[n]egligence is no ground for vacating
a judgment, and it has been consistently held that the denial of a motion
to open a default judgment should not be held an abuse of discretion where
the failure to assert a defense was the result of negligence. . . . Negligence
of a party or his counsel is insufficient for purposes of § 52-212 to set aside
a default judgment.’’ (Internal quotation marks omitted.) In re Ilyssa G.,
supra, 105 Conn. App. 48–49.