In re Jessica M., (SC 16013)

• Decision Date: 28 September 1999
• Docket Number: (SC 16013)
• Citation: 250 Conn. 747,738 A.2d 1087
• Court: Connecticut Supreme Court
• Parties: IN RE JESSICA M.

250 Conn. 747

738 A.2d 1087

IN RE JESSICA M.¹

(SC 16013)

Supreme Court of Connecticut.

Argued May 25, 1999.

Officially released September 28, 1999.

Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.² Eliot D. Prescott, assistant attorney general, for the petitioner.

Linda Pearce Prestley, child advocate for the amicus curiae (office of the child advocate).

Martha Stone, for the amicus curiae (Center for Children's Advocacy).

Opinion

PER CURIAM.

This particular certified appeal³ arises from a petition by the commissioner of children and families for, inter alia, termination of the respondents' parental rights in their minor child, Jessica M. The trial court dismissed that petition, and the Appellate Court affirmed the trial court's judgment.

The commissioner filed a subsequent petition for termination, which the trial court granted, terminating the parental rights of the respondent mother, Julie M., to Jessica M. Julie M. has not appealed that termination. Prior to the trial of the second petition for termination, the respondent father, Mark M., voluntarily relinquished his parental rights to Jessica M.

The commissioner has moved to vacate the judgments of the Appellate Court and the trial court in the present case on the grounds that this appeal is now moot and the issues decided by those courts have not been subject to review by the Supreme Court. After examining the record and considering the briefs and oral arguments of the parties, we have determined that this appeal, through no fault of the parties, has been rendered moot and should be dismissed. See Conetta v. Stamford, 246 Conn. 281, 295, 715 A.2d 756 (1998) (when events occur that preclude appellate court from granting practical relief through disposition of merits, case is moot); Blesso Fire Systems, Inc. v. Eastern Connecticut State University, 245 Conn. 252, 256, 713 A.2d 1283 (1998) (same). We further have determined that the judgments of the Appellate Court and the trial court in this matter should be vacated. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 22, 115 S. Ct. 386, 130 L. Ed. 2d 233 (1994) (when appeal rendered moot through no fault of parties, established federal practice is for appellate court to grant motion for vacatur of judgment under appellate review); United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S. Ct, 104, 95 L. Ed. 36 (1950) (same); compare U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, supra, 29 (mootness by reason of settlement does not require appellate court vacatur of judgment under appellate review); see also Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 269, 659 A.2d 148 (1995) (citing aforementioned cases with approval).

The appeal is dismissed and the judgments of the Appellate Court and the trial court are vacated. MCDONALD, J., with whom BERDON, J., joins, dissenting. I disagree with the majority's conclusion that the motion of the commissioner of children and families (commissioner) to vacate the judgments of the Appellate Court and Superior Court should be granted. The majority grants the motion on the basis that vacatur is automatic when an appeal becomes moot through no fault of the parties. I believe, however, that there remains a question whether the commissioner's voluntary actions caused the mootness, and that the application of a balancing test is necessary to determine whether vacatur is appropriate in light of public policy interests. Accordingly, I dissent.

The majority's decision to grant the commissioner's motion to vacate relies on federal cases that discuss automatic vacatur when an appeal becomes moot through no fault of the parties. The majority relies on the dictum of the United States Supreme Court in United States v. Munsingwear, Inc., 340 U.S. 36, 71 S. Ct. 104, 95 L. Ed. 2d 36 (1950) (Munsingwear), that "[t]he established practice of the [United States Supreme] Court in dealing with a civil case from a court in the federal system which has become moot while on its way [up to the Supreme Court] or pending [a] decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss." Id., 39. Munsingwear's holding, however, was that vacatur was not available because the government, as the party seeking vacatur, had "slept on its rights"; id., 41; by failing to appeal the unfavorable decision. See generally id., 39-41.

In later discussing Munsingwear, the United States Supreme Court observed that "the decision ... at most ... [stands for] the proposition that vacatur should have been sought, not that it necessarily would have been granted." U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 23, 115 S. Ct. 386, 130 L. Ed. 2d 233 (1994) (Bancorp). In Bancorp, the court observed that vacatur is not always automatic and noted that the language in Munsingwear calling automatic vacatur the "established practice" was dictum. See id. In Bancorp, the court stated that, in Munsingwear, it had acknowledged that the "`established practice' ... was not entirely uniform"; id.; and that "post-Munsingwear practice [has not] been [unfailingly] uniform."⁴ Id., 24.

In Bancorp, the United States Supreme Court considered whether vacatur was available when the mootness resulted from a party's voluntary actions. The court observed that the remedy of vacatur is not justified in cases in which the moving party causes mootness through its own voluntary actions—in Bancorp, by settlement—save under "exceptional circumstances." Id. When "the losing party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, [he has surrendered] his claim to the equitable remedy of vacatur." Id., 25. Vacatur, the court explained, is equitable relief, and the party seeking vacatur must demonstrate "equitable entitlement to the extraordinary remedy of vacatur." Id., 26. The court in Bancorp stated: "Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur." (Internal quotation marks omitted.) Id.; accord Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 272-73, 659 A.2d 148 (1995).

In DeMilo & Co., this court held that when a party's appeal from an unfavorable judgment is dismissed as moot, vacatur is not automatic, and courts should adopt a balancing approach in considering vacatur. See Commissioner of Motor Vehicles v. DeMilo & Co., supra, 233 Conn. 272-73. I believe that Appellate Court decisions are valuable and that proper procedures to review such opinions should be followed. There should be no "end runs."

Before applying any balancing...