Rek v. Pettit ( 2022 )

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PETER REK ET AL. v. KIRK PETTIT ET AL.
(AC 45210)
Bright, C. J., and Suarez and Seeley, Js.
Syllabus
The plaintiffs, legal guardians of the minor child C, appealed from the orders
of the trial court requiring C to suspend contact with his long-term
personal counselor, L, and engage with a new therapist with the goal
of working toward the resumption of visitation with the defendants, C’s
maternal grandparents. Thereafter, the defendants filed a motion with
the trial court, seeking an order that, notwithstanding the plaintiffs’
appeal, there was no automatic appellate stay in effect. Subsequently,
the trial court issued an order that there was no automatic stay of the
custody and visitation orders and that the plaintiffs were to comply
with the trial court’s orders. Thereafter, the trial court denied the plain-
tiffs’ motion for a discretionary stay. Subsequently, the plaintiffs filed
motions for review of the trial court’s orders determining that there
was no automatic appellate stay and denying their motion for a discre-
tionary stay. Held:
1. This court granted the plaintiffs’ motion for review of the trial court’s
order determining that there was no automatic appellate stay in effect
but concluded that the plaintiffs could not prevail on their claim that
the trial court incorrectly determined that there was no automatic appel-
late stay; the trial court’s orders pertained to the manner and extent of
visitation, as well as contact with the defendants, and visitation orders
expressly were exempt from the automatic appellate stay under the
relevant rule of practice (§ 61-11 (c)).
2. This court granted the plaintiffs’ motion for review of the trial court’s
order denying their motion for a discretionary stay and concluded that
the trial court did not abuse its broad discretion only insofar as the
court ordered the parties to engage with a new therapist for the purpose
of facilitating visitation, but it concluded that the trial court did abuse
its discretion in suspending contact between C and L, as that court did
not have before it any evidence regarding the impact of the suspension
of therapy on C’s best interest, L was not engaged at the behest of the
trial court, the suspension of therapy was only a suggestion made by
the defendants’ counsel at closing arguments, the guardian ad litem
indicated that suspension of therapy with L would not be in C’s best
interest and, therefore, the court did not adequately account for the
potential harm to C that could follow from the disruption of his relation-
ship with L; accordingly, relief was granted in part, in that the court’s
order that the therapy sessions between C and L were suspended until
further order of the court was stayed pending the final resolution of
this appeal, and the remainder of the relief requested was denied.
Considered May 11—officially released September 6, 2022
Procedural History
Action seeking to modify the terms of a visitation
agreement, brought to the Superior Court in the judicial
district of Waterbury, Juvenile Matters, where the court,
Coleman, J., granted the plaintiffs’ motion to modify
custody and issued certain orders; thereafter, following
an evidentiary hearing, the court, Hon. Eric D. Cole-
man, judge trial referee, reversed its previous orders
and issued new orders, from which the plaintiffs
appealed to this court; subsequently, the court, Hon.
Eric D. Coleman, judge trial referee, granted the defen-
dants’ motion for order for a determination as to
whether an automatic stay was in effect; thereafter, the
court, Hon. Eric D. Coleman, judge trial referee, denied
the plaintiffs’ motion for a mistrial, and the plaintiffs
filed an amended appeal; subsequently, the court, Hon.
Eric D. Coleman, judge trial referee, denied the plain-
tiffs’ motion for an order of discretionary stay; there-
after, the plaintiffs filed motions for review with this
court. Motion for review of order of no automatic appel-
late stay granted; relief denied. Motion for review of
denial of discretionary stay granted; relief granted
in part.
Megan L. Wade and James P. Sexton, in support of
the plaintiffs’ motions for review.
Opinion
SUAREZ, J. The plaintiffs, Peter Rek and Carisa Rek,
the legal guardians of a minor child named Caleb,1 have
appealed from the December 15, 2021 orders of the trial
court requiring Caleb to suspend contact with his long-
term personal counselor and engage with a new thera-
pist with the goal of working toward the resumption
of visitation with Caleb’s maternal grandparents, the
defendants, Kirk Pettit and Charlotte Pettit. On January
7, 2022, the defendants filed a motion with the trial court
seeking an order that, notwithstanding the plaintiffs’
appeal, there is no automatic stay of the court’s Decem-
ber 15, 2021 orders. On March 8, 2022, the court issued
a written order indicating that there is no automatic
stay of custody and visitation orders and that the plain-
tiffs are to comply immediately with its December 15,
2021 orders. On March 17, 2022, the plaintiffs filed a
motion for discretionary stay, which the court denied
on March 22, 2022.
Before this court are two motions for review filed by
the plaintiffs.2 The first motion, filed on April 4, 2022,
asks this court to review and reverse the court’s March
8, 2022 order determining that there is no automatic
appellate stay in effect. The second motion, filed on
April 21, 2022, asks this court to review and reverse
the court’s March 22, 2022 order denying their request
for a discretionary stay. On the first motion for review,
we conclude that the underlying orders are visitation
orders that are not automatically stayed pursuant to
Practice Book § 61-11 (c). On the second motion for
review, we conclude that the court did not abuse its
broad discretion in denying the plaintiffs’ request for a
discretionary stay only insofar as the court ordered the
parties to engage with a new therapist for the purposes
of facilitating visitation; we reach a different conclusion
with respect to the court’s order suspending Caleb’s
contact with his long-term personal counselor. We
therefore grant the plaintiffs’ April 4, 2022 motion for
review, but deny the relief requested therein, and grant
the April 21, 2022 motion for review, and grant, in part,
the relief requested therein.
The following undisputed facts and procedural his-
tory are pertinent to the resolution of these motions.
Caleb was born in 2010. When Caleb’s biological parents
became unavailable to care for him, the plaintiffs and
the defendants filed petitions for custody of Caleb with
the Superior Court for Juvenile Matters in Waterbury.
On August 8, 2016, the Superior Court for Juvenile Mat-
ters, Dooley, J., appointed the plaintiffs as legal guard-
ians of Caleb, and approved a visitation agreement
between the plaintiffs and the defendants and entered
it as an order of the court. The order further provided
that enforcement or modification thereof would be in
family court. On November 29, 2016, the plaintiffs filed
the underlying action seeking to modify the terms of
the visitation agreement. The defendants objected and
filed a motion for contempt. This protracted litigation
followed. Notwithstanding court orders to the contrary,
visitation actually ceased in August, 2017, allegedly due
to Caleb’s anxiety in the presence of the defendants.
Attorney Rosa C. Rebimbas was appointed as guardian
ad litem (GAL) for Caleb on September 10, 2018.
The court, Coleman, J., conducted an evidentiary
hearing from September 3 through 6, 2019, on the plain-
tiffs’ November 29, 2016 motion. Among the witnesses
who testified at the 2019 trial were the GAL; Patricia
Levesque, Caleb’s personal counselor since 2016; Con-
stance Mindell, who, the court found, had been involved
to ‘‘assist the parties in working together for the best
interests of the child’’ since September, 2017; and Kris-
tan McClean, who, the court found, has ‘‘been involved
since January 14, 2019, to help the parties foster a better
relationship’’ between Caleb and the defendants. On
January 3, 2020, the court, in a memorandum of deci-
sion, granted the plaintiffs’ motion to modify and issued
orders requiring progressively increased contact (let-
ters, phone calls, and ‘‘fun time’’ outings with Peter
Rek, Kirk Pettit, and Caleb). It specifically required the
parties to ‘‘continue to work together in a therapeutic
setting with Kristan McClean or some other mutually
agreed upon duly licensed and qualified therapist to
arrive at a schedule of visitation . . . .’’ The court gave
the parties a one year report back date. Neither party
appealed from the January 3, 2020 orders.
On February 26, 2020, the defendants filed a motion
for order claiming that the plaintiffs would not cooper-
ate in finding a different ‘‘mutually agreed upon’’ thera-
pist to work toward visitation, to which the plaintiffs
objected. Court operations were curtailed shortly there-
after due to the COVID-19 pandemic.
On January 5, 2021, the parties appeared before Judge
Coleman for their report back date. On January 26,
2021, the plaintiffs filed a motion for order, asking the
court to preclude the defendants from rearguing issues
that predated the January 3, 2020 decision. The defen-
dants objected. The parties and their counsel appeared
before the court on various dates in early 2021. On
February 16, 2021, the plaintiffs filed a request for an
evidentiary hearing because there was a disagreement
as to whether the parties had complied with the court’s
January 3, 2020 orders. Thereafter, the court requested
that each side provide the name of a family therapy
professional acceptable to that side. On April 7, 2021,
the defendants filed a notice of compliance, giving the
name of Philip J. Mays. On April 8, 2021, the plaintiffs
filed their notice of compliance, giving the names of
three professionals at Connecticut Behavioral Health.
In that notice, they also requested ‘‘an evidentiary hear-
ing on the issue of whether . . . engag[ing] with
another therapist for the purpose of determining
whether visitation between [the defendants and Caleb]
is in the best interest of the minor child.’’
The court heard testimony on June 1, June 28, and
August 16, 2021, on the plaintiffs’ April 8, 2021 request
for a hearing. At that hearing, McClean testified that,
beginning in January, 2019, her role was to work with
the parties to establish a safe and healthy visitation
relationship. In alternating weeks, she met with Caleb
and then the defendants, to work through Caleb’s con-
cerns with ‘‘past interactions’’ with the defendants in
order to ‘‘work toward’’ a joint session. There was one
joint session in the summer of 2019, which she
described as ‘‘uncomfortable’’ for Caleb. McClean testi-
fied that she had not met with the defendants since
September, 2019. She testified that she believed they
were unwilling to work with her, although she had
‘‘made herself available.’’ She continued to meet
remotely with Caleb and the plaintiffs approximately
once per month through September, 2020. The court
also heard testimony from Kirk Pettit, Carisa Rek, Lev-
esque, and the GAL, and then heard closing arguments.
On December 15, 2021, the court issued a memoran-
dum of decision in which it reversed its January 3, 2020
orders and issued a series of new orders. The court,
inter alia, (1) ordered the parties to discontinue working
with McClean altogether, (2) ‘‘suspended until further
order of the court’’ any contact between Caleb and
Levesque, and (3) ordered the parties to engage the
services of Mays, the defendants’ chosen family thera-
pist, to ‘‘conduct one therapeutic/reunification visit per
month’’ with Caleb, and ‘‘as appropriate including with
[the defendants] and any other parties deemed neces-
sary.’’ Those orders also required progressively
increased contact (letters, phone calls, and ‘‘fun time’’
outings with Peter Rek, Kirk Pettit, and Caleb) and
monthly in-person visits between Caleb and the defen-
dants, supervised by one or both of the plaintiffs, begin-
ning as soon as March, 2022, ‘‘[i]f and when deemed
appropriate’’ by Mays.
On January 3, 2022, the plaintiffs filed this appeal.
On January 4, 2022, the plaintiffs’ appellate counsel
notified Mays, by way of email, that he had filed an
appeal of the court’s January 3, 2022 orders and, as a
result of the automatic stay stemming from the appeal,
he advised the plaintiffs not to meet with him. On Janu-
ary 10, 2022, the defendants filed a motion for order in
the trial court, asking the court to terminate the appel-
late stay, if one existed. The plaintiffs objected on sub-
stantive and procedural grounds.3 The plaintiffs also
filed a motion for a mistrial, which the court denied.
On January 28, 2022, the plaintiffs filed an amended
appeal challenging the denial of their motion for a mis-
trial.
I
In their first motion for review, filed on April 4, 2022,
the plaintiffs challenge the court’s determination that
an automatic appellate stay was not in effect and argue
that the December 15, 2021 orders are not ‘‘orders of
. . . visitation’’ that are exempt from the automatic
appellate stay. We are not persuaded.
Our review of the plaintiffs’ claim requires us to con-
strue Practice Book § 61-11, particularly subsections
(a) and (c). The interpretation and application of provi-
sions of the rules of practice involves a question of
law over which our review is plenary. See Bouffard v.
Lewis, 203 Conn. App. 116, 120, 247 A.3d 667 (2021).
Practice Book § 61-11 governs stays of execution.
Section 61-11 (a) provides in relevant part: ‘‘Except
where otherwise provided by statute or other law, pro-
ceedings to enforce or carry out the judgment or order
shall be automatically stayed until the time to file an
appeal has expired. If an appeal is filed, such proceed-
ings shall be stayed until the final determination of the
cause. . . .’’ Pursuant to § 61-11 (c), certain orders in
family matters are exempt from the automatic stay pro-
vision: ‘‘Unless otherwise ordered, no automatic stay
shall apply . . . to orders of . . . custody or visitation
in family matters brought pursuant to chapter 25
. . . .’’
The plaintiffs maintain that the December 15, 2021
orders change ‘‘Caleb’s medical providers with the
intent of potentially leading to future visitation. To be
clear, not a single [December 15, 2021] order actually
orders any visitation between Caleb and the [defen-
dants] on a date certain. As a result, they are not visita-
tion orders . . . .’’ In support of their position, the
plaintiffs rely on the ‘‘plain meaning’’ of the term ‘‘visita-
tion order.’’ The plaintiffs argue that most of the orders
do not ‘‘[establish] a visiting time between Caleb’’ and
the defendants, but rather ‘‘detail progressive potential
contact that is explicitly contingent on’’ whether Mays
deems such contact to be appropriate. And because,
according to the plaintiffs, an order requiring them to
change therapists is automatically stayed, so too is any
‘‘progressive potential contact.’’4 We are not persuaded.
The court’s authority to adjudicate the dispute
between these parties arises under General Statutes
§ 46b-56, which allows the court to issue ‘‘[o]rders
[regarding] custody, care, education, visitation and sup-
port of children.’’ General Statutes § 46b-56 (i) clearly
states that ‘‘[a]s part of a decision concerning custody
or visitation, the court may order either parent or both
of the parents and any child of such parent to participate
in counseling . . . provided such participation is in the
best interest of the child.’’ Our Supreme Court, in DiGio-
vanna v. St. George, 300 Conn. 59, 75, 12 A.3d 900(2011), described the ‘‘tools in [the trial court’s] arsenal
to effectuate visitation’’ as including ‘‘prescrib[ing] spe-
cific conditions under which visitation would take place
to address legitimate concerns of either party.’’5 The
court can order ‘‘appropriate counseling sessions
geared toward the cessation of the animosity between
the parties or, at the least, minimizing the possibility
that such animosity will have a negative impact upon
the child.’’ Id., 76. The court also may use its contempt
powers to coerce a recalcitrant party’s compliance. See
id. ‘‘[T]he best interest of the child guides the court in
determining how best to foster [the] relationship. Those
considerations may indicate . . . counseling, as well
as restrictions on the time, place, manner and extent
of visitation.’’ Id., 78.
In the present case, in its January 3, 2020 memoran-
dum of decision, the court suspended the August 8,
2016 orders of visitation, finding that those orders were
not in Caleb’s best interest at that time. The court,
however, expressly and clearly ordered, inter alia, the
parties to ‘‘continue to work together in a therapeutic
setting with . . . McLean or some other mutually
agreed upon duly licensed and qualified therapist to
arrive at a schedule of visitation between [the defen-
dants] and Caleb.’’ (Emphasis added.) The court went
on to issue further orders to reinstate visitation between
the defendants and Caleb, as deemed appropriate by
the therapist. Neither party appealed from these orders.
In its December 15, 2021 memorandum of decision,
the court explicitly found that its January 3, 2020 orders
were not complied with and little effort had been made
to achieve contact between Caleb and the defendants.
The court issued new orders that pertain to the ‘‘manner
and extent of visitation’’ and contemplate progressively
increased contact, with Mays’ approval, geared toward
the possibility of resuming regular monthly visits
between Caleb and the defendants. Visitation orders
expressly are exempted from the automatic appellate
stay by Practice Book § 61-11 (c). Because we conclude
that the orders at issue are ‘‘orders of . . . visitation’’
within the meaning of § 61-11 (c), they are not automati-
cally stayed. Accordingly, the relief requested in the
first motion for review is denied.
II
In their second motion for review, filed on April 21,
2022, the plaintiffs challenge the court’s decision deny-
ing their request for a discretionary stay pursuant to
Practice Book §§ 61-11 (c) and 61-12 pending the resolu-
tion of this appeal. They maintain that: (1) ‘‘the trial
court failed to weigh properly the factors set forth in
Practice Book § 61-11 (c) in support of its denial of a
discretionary stay; and (2) the findings upon which the
trial court based its decision are clearly erroneous, find-
ing no support in the record . . . .’’ We conclude that
the court did not abuse its broad discretion in determin-
ing that staying those orders would not be in the child’s
best interest. We further conclude, however, that the
court abused its discretion in suspending the ‘‘psycho-
therapy sessions and any other contacts between
[Caleb] and Patricia Levesque,’’ his personal therapist
since 2016, pending the resolution of this appeal.
This court reviews trial court orders concerning dis-
cretionary stays under an abuse of discretion standard.
See Griffin Hospital v. Commission on Hospitals &
Health Care, 196 Conn. 451, 459, 493 A.2d 229 (1985).
‘‘In determining whether a trial court has abused its
broad discretion . . . we allow every reasonable pre-
sumption in favor of the correctness of its action. . . .
Appellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Kyle S. v. Jayne
K., 182 Conn. App. 353, 362, 190 A.3d 68 (2018).
Practice Book § 61-11 (c) provides that a trial court
may terminate or impose a stay in family matters follow-
ing a hearing, provided the court considers the follow-
ing factors relevant to this case: ‘‘(1) the needs and
interests of the parties, their children and any other
persons affected by such order; (2) the potential preju-
dice that may be caused to the parties, their children
and any other persons affected, if a stay is entered, not
entered or is terminated . . . (4) the need to preserve
the rights of the party taking the appeal to obtain effec-
tive relief if the appeal is successful . . . and (6) any
other factors affecting the equity of the parties.’’6
The court denied the plaintiffs’ motion for a discre-
tionary stay on March 22, 2022, and issued a memoran-
dum of decision on April 11, 2022. In that decision, the
court found that ‘‘absolutely nothing had been done in
furtherance of the progressive steps set forth’’ in the
court’s initial January 3, 2020 decision. It determined
that further delay of an opportunity for ‘‘another thera-
pist to attempt to facilitate a functional relationship
between Caleb and the defendants merely allows the
assessment of the current therapists to go unchallenged
and to become a self-fulfilling prophecy.’’ The court
was highly critical of Levesque, who testified that she
‘‘never discussed’’ the visitation issue with Caleb, yet
repeatedly testified in various proceedings that the
‘‘slightest contact’’ with the defendants ‘‘might be
incredibly damaging to Caleb.’’ The court characterized
her testimony as ‘‘speculat[ive]’’ no fewer than three
times. The court found that the other providers and
Caleb had ‘‘been influenced by Levesque.’’
The plaintiffs maintain that the court based its deci-
sion on a series of ‘‘core factual findings [that] are
clearly erroneous.’’ Among these are that McClean
‘‘never’’ held a joint session with the defendants and
Caleb; and that Levesque had ‘‘influenced’’ McClean.
Other challenged findings include the court’s character-
ization of the efforts by the various professionals to
facilitate visitation as ‘‘pitifully feeble’’ and the sugges-
tion that, if anything, Caleb’s anxiety regarding the
defendants has ‘‘gotten progressively worse.’’
The record before the court, however, supports a
finding that Caleb has not visited with the defendants
since the summer of 2019—months before the court’s
January 3, 2020 orders, and not at all since the court
issued those orders. The court in its April 11, 2022
memorandum of decision, found that none of the court’s
January 3, 2020 orders had resulted in ‘‘progressively
increased contact,’’ nor had the parties ‘‘work[ed]
together in a therapeutic setting . . . to arrive at a
schedule of visitation.’’ On this record, and for the lim-
ited purpose of determining whether the court abused
its discretion in declining to stay its December 15, 2021
orders that the parties engage with a new therapist,
Mays, to facilitate visitation, we are not left with a
definite and firm conviction that the challenged findings
were clearly erroneous.
In determining whether to enter a discretionary
appellate stay of its orders in a family matter, the court
must consider the ‘‘needs and interests’’ of the parties
and weigh the ‘‘potential prejudice’’ that may be caused
if a stay is not entered. See Practice Book § 61-11 (c)
(1) and (2). In weighing those factors here, the court
determined that Caleb’s needs and interests were ‘‘para-
mount’’ and ‘‘[t]hose needs and interests are protected
by the oversight of Mr. Mays, whose involvement is
an essential part of the [court’s] December 15, 2021
[decision].’’ The court found that, if Mays ‘‘determines
that visitation between [Caleb and the defendants]
should proceed, that visitation will occur under his pro-
fessional and responsible guidance and direction.’’ The
court further found that the plaintiffs will not be preju-
diced by allowing Caleb to begin therapy with Mays
because it is possible that Mays could agree with the
plaintiffs and recommend against visitation.
Pursuant to Practice Book § 61-11 (c) (6), the trial
court was free to consider ‘‘any other factors affecting
the equity of the parties.’’ Here, the court found: (1)
the parties had entered into the negotiated visitation
agreement with the juvenile court in 2016, and the plain-
tiffs almost immediately moved to modify it; (2) the
plaintiffs have ‘‘never . . . attempted to offer or pro-
duce any evidence’’ that the defendants ‘‘failed to pro-
tect [Caleb] from inappropriate adult situation and
behavior,’’ despite the representation in their 2016
motion to modify; (3) the plaintiffs unilaterally termi-
nated visitation in 2017; and (4) the plaintiffs have not
done ‘‘all they could’’ to alleviate Caleb’s anxiety regard-
ing visitation. The court apparently weighed these find-
ings heavily in determining that immediately engaging
with a new family therapist to facilitate visitation was
in Caleb’s best interest.
In arguing that the court abused its broad discretion
in refusing to stay that order pending the resolution of
their appeal, the plaintiffs emphasize contrary evidence
that was before the court. McClean testified that the
defendants were unwilling to follow through with thera-
peutic recommendations. The GAL recommended reen-
gaging with McClean because, in her opinion, engaging
yet another professional to facilitate visitation would
not be in Caleb’s best interest. The court had before
it a three page document handwritten by Caleb and
introduced through Levesque, in which Caleb stated
that he was eleven and one-half years old and just
wished that the defendants would ‘‘leave [him] alone’’
because they make him ‘‘uncomfortable’’ and ‘‘all the
therapy is thanks to them . . . and I think I have [post-
traumatic stress disorder]. . . .’’ Levesque testified that
Caleb’s response to visitation with the defendants was
that of someone who experienced ‘‘trauma’’ and who
had been diagnosed with ‘‘post-traumatic stress disor-
der.’’ In their motion for review, the plaintiffs acknowl-
edge that the court was free to discredit all of this
evidence. They emphasize, however, that, in order for
the court to have reached the conclusions that it did,
there must be some affirmative evidence that engaging
with Mays is in Caleb’s best interest, and they argue
that no such evidence was presented because Mays was
not called to testify.
We are troubled by the court’s heavy reliance on the
professional judgment of Mays in fashioning its orders
when Mays was not presented as a witness at trial nor
were his credentials presented as evidence. However,
because contact between the defendants and Caleb has
been minimal since August, 2017 (and apparently non-
existent since August, 2019, notwithstanding court
orders to the contrary), the court determined that an
‘‘assessment concerning whether . . . [a visitation
relationship] is feasible should be done without any
further delay.’’ (Emphasis added.) The defendants’
position at trial was that McClean had ‘‘failed’’ to facili-
tate a visitation relationship between the defendants
and Caleb and that, instead, Mays should be engaged
to conduct at least one ‘‘therapeutic reunification’’ visit
per month with them and Caleb. The court’s various
orders clearly indicate that it was dissatisfied with
McClean’s efforts at facilitating visitation. The court
weighed the Practice Book § 61-11 (c) factors in a man-
ner that furthered Caleb’s interests in a relationship
with the defendants, and declined to stay its December
15, 2021 orders requiring the parties to engage with
Mays for the purpose of assessing whether visitation
is feasible. On this record, we cannot say that the court
abused its broad discretion in declining to stay those
orders pending the resolution of the plaintiffs’ appeal.
Nevertheless, we conclude that the court abused its
broad discretion when it did not stay its December 15,
2021 order that Caleb suspend all contact with Lev-
esque, his personal therapist since August, 2016, pend-
ing the final resolution of this appeal. The evidence
before the court was that, unlike McClean, the GAL, and
other professionals tasked with facilitating a visitation
relationship between Caleb and the defendants, Lev-
esque was not engaged at the behest of the court. More-
over, it appears that the defendants’ request for relief
with respect to Levesque was raised, for the first time,
during their counsel’s closing argument when counsel
asked the court to ‘‘remove Patty Levesque from this
boy’s life.’’7 When counsel concluded argument, the GAL
asked for permission to ‘‘speak up’’ in response to the
defendants’ late ‘‘modification of the proposed orders,’’
which the court permitted. The GAL indicated that Lev-
esque is Caleb’s ‘‘personal counselor,’’ not a ‘‘court-
ordered’’ professional, and that Caleb ‘‘does have a bond
[with Levesque and] . . . that any action by this court
to [affect] that bond would be detrimental to the child
and not in the child’s best interest.’’ There was no evi-
dence presented to support a contrary opinion.
To be clear, we make no determination, at this junc-
ture, that the court erred in its assessment of Levesque’s
credibility or the progress that Caleb had made in his
treatment with her. However, the court did not have
before it any evidence as to the impact the suspension
of therapy between Caleb and Levesque would have on
Caleb’s best interest. The court only heard a suggestion
by the defendants’ counsel at closing arguments that
the court should suspend the therapy. Moreover, we
find it compelling that the GAL’s response to the defen-
dants’ eleventh hour request to remove Levesque from
Caleb’s life was to seek permission to address the court
to make known her professional assessment that such
an order would not be in Caleb’s best interest. We con-
clude that, in declining to stay this order, the court did
not adequately account for the potential harm to Caleb
that could follow from the disruption of his relationship
with his long-term personal counselor. We agree with
the plaintiffs insofar as they ask this court to stay that
portion of the trial court’s December 15, 2021 orders
pending the final resolution of this appeal. We therefore
grant the second motion for review and grant relief
limited to this order.
The motion for review filed on April 4, 2022, is
granted, but the relief requested therein is denied. The
motion for review filed on April 21, 2022, is granted,
and the relief requested therein is granted, in part, in
that the court’s December 15, 2021 order that ‘‘[t]he
psycho-therapy sessions and any other contacts
between the minor child and Patricia Levesque shall be
suspended until further order of the court’’ is stayed
pending the final resolution of this appeal; the remain-
der of the relief requested is denied.
In this opinion the other judges concurred.
1
The plaintiffs are very close friends of Caleb’s biological mother.
2
The plaintiffs filed several other motions seeking relief from this court.
On March 25, 2022, this court ordered a temporary stay of the trial court’s
orders pending the resolution of these motions for review. See Practice
Book §§ 60-1 and 61-14. This court also directed the court to comply with
Practice Book § 64-1 (b) and issue a decision setting forth the factual and
legal basis of its March 22, 2022 order denying the plaintiffs’ motion for a
discretionary stay. The court issued its memorandum of decision on April
11, 2022.
3
After an appeal is filed, Practice Book § 61-11 (e) requires that a motion
to terminate an appellate stay be filed with the appellate clerk.
4
The plaintiffs also argue that the court’s consideration of the issue of
whether there was an appellate stay of the December 15, 2021 orders ‘‘vio-
lated the automatic stay that was created by the plaintiffs appealing the
trial court’s denial of their motion for mistrial.’’ This argument merits little
discussion. See Ahneman v. Ahneman, 243 Conn. 471, 482–83, 706 A.2d 960(1998) (‘‘It is well established that a trial court maintains jurisdiction over
an action subsequent to the filing of an appeal. . . . Moreover, a trial court’s
postappeal jurisdiction persists regardless of any degree of substantive con-
nection between the postappeal motion and the issue on appeal.’’ (Citations
omitted; internal quotation marks omitted.)).
5
In DiGiovanna v. St. George, supra, 300 Conn. 73–79, our Supreme Court
considered whether a trial court may deny a nonparent’s application for
visitation when the applicant has met the stringent burden of proof estab-
lished in Roth v. Weston, 259 Conn. 202, 234–35, 789 A.2d 431 (2002). In
DiGiovanna, our Supreme Court treated, as uncontested, that the applicant
had proven by clear and convincing evidence that the requisite relationship
existed between the applicant and the child pursuant to Roth, and that the
child would suffer the requisite level of harm if the relationship was not
permitted to continue. DiGiovanna v. St. George, supra, 61. In resolving
that appeal, our Supreme Court primarily addressed the implementation
of visitation under a best interest of the child standard. See id., 73–79.
Implementation of visitation orders is also the issue in this matter.
6
Practice Book § 61-11 (c) (3) and (5) are factors specific to financial
issues in a marital dissolution action that are not relevant to the resolution
of this matter.
7
Relevant portions of the closing argument by the defendants’ counsel
are as follows:
‘‘It’s really perplexing on how we have five years of intensive therapy
with Patty Levesque and we’ve got no amelioration of his anxiety. His
anxiety, as you pointed out, I don’t know if you were saying his anxiety is
regressing but there’s regression not progression. Why? It really makes no
sense. . . .
‘‘Our proposed orders are to utilize Mr. Philip Mays . . . conduct one
therapeutic reunification visit at minimum per month between Caleb and
his grandparents. And that’s without the presence of Peter and [Carisa] Rek.
. . . [For reasons stated, Ms. McClean] is not the right person for this job.
I do believe Mr. Mays is. . . .
‘‘I think Ms. McClean had the opportunity to get a breakthrough going
and she failed. It’s too bad that so much time has passed and I think our
postorders appreciate that. . . . [We] are very measured in our request.
Once a month therapeutic visitation, reunification visitation, supervised by
Mr. Mays. Is that so much to ask? Under the circumstances, Your Honor,
it’s the best interest for Caleb. . . . His best interest is to deal with this
irrational perspective of his grandparents in a therapeutic setting with a
competent professional.
‘‘I don’t know if Your Honor would take the steps that it would take to
remove Patty Levesque from this boy’s life. I know you have the authority
to do that. I think she’s testified, I think three times now and I’ve never
been more certain that that should happen. So, I would, I think, modify my
proposed orders just slightly and ask Your Honor to at least consider that.
Is she the source? I don’t think so. But is she helpful? I don’t think so. Will
you order it? I’m not so sure you will. But I could see, Your Honor, if you
tie it together. If we remove her and we add one person one time per month
I think it’s actually going to benefit Caleb quite a bit.’’