Connecticut Child Protection Basic Appellate Practice

DETERMINING WHETHERAN APPEAL IS VIABLE

By Sarah Eagan Inez Galloza

Editorial support: Paul ChillMay 24, 2010

Purely statutory.* CGS § 46b-142:

◦ “The Department of Children and Families, or any party at interest aggrieved by any final judgment or order of the court, may appeal to the Appellate Court . . . .”

20-day deadline to file.◦ Can be extended to 40 days. (P.B. §35a-21)

RIGHT TO APPEAL

Limited Time for Appellate Review: 40 days if Motion for Extension of Time is granted◦ Inform client of decision immediately◦ Ascertain client’s position and need for appellate

review Effects of untimely determination

Mechanics

◦ Refrain from discussions with the client regarding viability of appeal

◦ Request for Appellate Review Counsel thru CCPA immediately

◦ Motion for Extension of Time◦ Transcript Order—Non Appeal (See Form)◦ Application for Appointment of Counsel/Waiver of

Fees (See Form)◦ If Appellate Review Counsel finds no basis for

appeal, then client has right to retain other counsel. P.B. § 35a-21

Obtaining Appellate Review Counsel (see CCPA Memo)

Communicate with Appellate Review Counsel

Mechanics of CP appeals

Trial Counsel pursuing appeal ◦ Consultation with Appellate Counsel◦ Bench decisions, P.B. § 64-1

Moot session with CCPA

Mechanics of CP appeal

Expedited Time Frames in Child Protection Cases◦ Stricter enforceability of Appellate Rules◦ Motion for Extension of Time◦ Motion to Dismiss, sua sponte◦ Pending Report

Mechanics of CP appeals

Children are parties to all proceedings, PB 32a-1

Children may appeal termination judgment. In re Melody L., 290 Conn. 131, 155-57, 962 A.2d 81, 98-99 (2009).

Parent and child’s rights intertwined. In re Christina M., 280 Conn. 474, 487, 908 A.2d 1073, 1083 (2006).

Rights of the Child Client

Consider taking an appeal, as opposed to default position statement

Consider requesting Appellate Review Counsel PRACTICE TIP:

◦ Children may file a brief within 10 days of the filing of the appellee’s brief. P.B. § 67-13

◦ Issue: what appellate procedures apply to children when filing a brief in support of the appellant?

◦ Children should file separate appeal.

Rights of Child Client

OTC is a final judgment Must be immediately appealed In re

Nashiah C., 87 Conn. App. 210, 216, 866 A.2d 669, 673, cert denied, 273 Conn. 926, 871 A.2d 1031 (2005).

Visitation Orders appealable (family law): “temporary visitation orders are so related to the custody orders as to render them immediately appealable.” Traff v. Bettcher, 34 Conn. App. 421, 424 n.2 (1994).

JUSTICIABILITY

Underlying or attendant issues may not be appealable.

For example, in a termination of parental rights

appeal, the court may not reconsider an underlying finding of neglect that was made in a previous proceeding. In re Stephen M., 109 Conn. App. 644, 953 A.2d 668 (2008). The only way to challenge the neglect finding is to appeal in a timely manner from the original adjudication.

Justiciability

Must be practical relief that a court can provide the parties through its determination of the matter.

“an actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." Williams v. Ragaglia, 261 Conn. 219, 225 (2002).

Can be raised at any time. In re Kachainy C., 67 Conn. App. 401 (2001).

Mootness

Neglect adjudication moots OTC claim. See In re Forrest B., 109 Conn. App. 772, 953 A.2d 887 (2008)

Children reaching age 18 mooted parents’ appeal of neglect adjudication. In re Elisabeth H., 45 Conn. App. 508, 512, 696 A.2d 1291, 1293 (1997)

BUT SEE: Court does not lose jurisdiction over 18 year old’s case simply by virtue of youth having reached age of majority. In re Shonna K., 77 Conn. App. 246, 259, 822 A.2d 1009, 1017 (2003)

 

Mootness

Must appeal alternative grounds for court’s findings.

See In re Jorden R.,293 Conn. 539, 979 A.2d 469 (2009)(vacating the appellate court's holding that the trial court erroneously found that the mother was unable or unwilling to benefit from reunification services where the trial court found a) that the state had made reasonable efforts and b) that the mother was unable and unwilling to benefit from such efforts and the mother only appealed the latter finding.)

Mootness

Capable of repetition yet evading review”

OR

“Collateral consequences”

Mootness exceptions

THREE CRITERIA:

First, the challenged action must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded.

Second, reasonable likelihood that the question will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group.

Third, the question must have some public importance.

Loisel v. Rowe, 233 Conn. 370, 382 660 A.2d 323, 330 (1995)

Capable of Repetition but Evading Review

Must be reasonably possible

Must be in the record

Collateral Consequences

Generally not a problem for parties

Standing of intervening parties. In re Shanaira C., 105 Conn. App. 713, 940 A.2d 817 (2008) (cert pending) (holding that non-relative intervener had standing to appeal court’s ruling revoking child’s commitment.)

Foster parents may not have standing. See, e.g., Terese B. v. Commissioner of Children and Families, 68 Conn. App. 223 (2002) (foster parent lacked standing to pursue administrative appeal of DCF hearing officer decision upholding Department’s removal of foster child from her care, where right to such hearing granted only be reg and not statute)

Standing

Motion to stay execution of that judgment should also be filed as soon as possible in order to protect the parent’s right to visit the child while the appeal is pending. See Practice Book § 61-12. Unless a stay of execution is obtained, the termination judgment extinguishes the parent’s visitation rights. In re Amy H., 56 Conn. App. 55, 61, 742 A.2d 372, 377 (1999).

Child’s independent right to seek visitation post TPR. See Michaud v. Wawruck, 209 Conn. 407, 415 (1988); In re Juvenile Appeal (Anonymous), 177 Conn. 648 (1999); C.G.S. 46b-121.

Preserving Parties Rights and Relationships

Whether to grant a stay is within the discretion of the trial court

Other factors include the likely outcome of the appeal, the irreparability of harm to the movant, and the effect of delay upon other parties as well as the general public. Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 458-59(1985)

See also In re Alexander T., 33 Conn. L. Rptr. 586, 2002 WL 31957474 (Conn. Super. Ct. 2002) (stay denied where success on appeal is only a possibility, not a probability).

Stays

The Practice Book provides that a temporary stay may be ordered sua sponte or on written or oral motion until the time to take an appeal has expired or, if an appeal has been filed, until the final determination of the cause.

See Practice Book § 61-12.

Stays

Santosky v. Kramer, 455 U.S. 745 (1982)◦ Best known for procedural due process holding.◦ But also has substantive due process aspect:

Court suggests that state would violate due process by terminating parental rights non-consensually “without some showing of [parental] unfitness and for the sole reason that to do so was thought to be in the children's best interest.” (FN 10; internal quotes, citations omitted.)

MLB v. SLJ, 519 U.S. 102 (1996)◦ TPR works “unique kind of deprivation” compared to

all other civil actions.

CONSTITUTIONALIZING APPELLATE ISSUES

1. Motions for contempt In re Marcus.

120 Conn. App. 745 (2010) In re Leah S.

284 Conn. 685 (2007)

Recent Issues in child protection appeals

Rights of Incarcerated parent to due process. In re Marcus, 120 Conn. App. 745 (2010);In re Jaime, 120 Conn. App. 712(2010); In re Lukas, 120 Conn. App. 465(2010).

Recent Issues

Permanency/Best Interests Findings. In re Jordan T 296 Conn. 905 (2010)

Recent Issues

Conflicted representation by child’s counsel. In re Lyric H., 114 Conn. App. 582 (2009).

Recent Issues

Predictive Neglect In re Francisco R., 111 Conn. App. 529

(2009) In re TK, 105 Conn. App. 502 (2009) In re Anthony A., 112 Conn. App. 643 (2009)

Recent Issues

Evidentiary. Admissibility of children’s statements. In re Tayler F., 111 Conn. App. 28 (2008), cert granted 290 Conn. 901(2009)

Right to evidentiary hearing in revocation/guardianship case. In re Shanaira C., cert granted, 286 Conn. 917 (2008)

Rights of 18 year olds in juvenile court. In re Matthew F. Supreme Court

Pending Issues

Standard of Review in TPR cases:“clearly erroneous” versus “scrupulous review and substantial evidence” See In re Tremaine, 117 Conn. App. 521 2009, In re Melody L., 290 Conn. 131 (2009).

Standard of review when assessing rights of o non-custodial parent.

Recent Issues