In re Aisjaha N., 080320 CTCA, AC 43680

Docket Nº:AC 43680
Opinion Judge:DiPENTIMA, C.J.
Party Name:IN RE AISJAHA N. [*]
Attorney:Benjamin M. Wattenmaker, assigned counsel, for the appellant (respondent mother). Stephen G. Vitelli, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, William Tong, attorney general, for the appellee (petitioner).
Judge Panel:DiPentima, C.J., and Moll and Harper, Js.
Case Date:August 03, 2020
Court:Appellate Court of Connecticut
 
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IN RE AISJAHA N. [*]

No. AC 43680

Court of Appeals of Connecticut

August 3, 2020

Argued May 18, 2020 [***]

Procedural History

Petition by the Commissioner of Children and Families to adjudicate the respondents' minor child neglected, brought to the Superior Court in the judicial district of Waterbury, Juvenile Matters, and tried to the court, Hon. John Turner, judge trial referee; judgment adjudicating the minor child neglected and ordering commitment to the custody of the Commissioner of Children and Families, from which the respondent mother appealed to this court. Affirmed.

Benjamin M. Wattenmaker, assigned counsel, for the appellant (respondent mother).

Stephen G. Vitelli, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, William Tong, attorney general, for the appellee (petitioner).

DiPentima, C.J., and Moll and Harper, Js. [**]

OPINION

DiPENTIMA, C.J.

The sole issue in this appeal is whether the court, Hon. John Turner, judge trial referee, erroneously denied the respondent mother's motion for a continuance during a trial in which her daughter, Aisjaha N. (child), was adjudicated neglected. The oral motion, made by counsel for the respondent mother at the start of the hearing, was based on her alleged emergency hospitalization at the time of the hearing. The court denied the motion and the neglect hearing proceeded without the respondent mother present. The court found that the child was neglected and committed her to the care of the petitioner, the Commissioner of Children and Families. This appeal followed. In her appeal, the respondent mother argues that the trial court violated her due process rights under the fifth amendment to the United States constitution by denying her motion for a continuance of the petitioner's neglect petition. The petitioner argues that the court properly denied her motion for a continuance and that the respondent mother's due process rights were not implicated. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The petitioner filed a petition for neglect on November 25, 2018, alleging that the child had been abandoned, had been denied proper care and attention and was living under conditions injurious to her well-being. The respondent mother was served with an order for temporary custody, petition, summons, notice and an order to appear on December 7, 2018, and January 9, 2019. She appeared on December7, 2018, and entered a plea of denial. The case was continued until January 23, 2019, for a case status conference and for the respondent mother to undergo a competency examination. The respondent mother failed to attend the hearing and the trial was continued to February 20, 2019, when the respondent mother again failed to appear. On March 14, 2019, after a competency hearing, the respondent mother was found to be incompetent and proceedings were stayed for sixty days to allow the respondent mother to be restored to competency. On May 29, 2019, the court found that the respondent mother had not been restored to competency and appointed a guardian ad litem for her. The case then was continued to July 16, 2019, for a case status conference at which a trial on the neglect petition was scheduled for October 28, 2019.

The respondent mother failed to appear for the October 28, 2019 trial. At trial, counsel for the respondent mother reported that the respondent mother would not be present because she was hospitalized. Counsel stated: ‘‘I received word from [the social worker for the respondent mother] last week that she-although she had no verification because she didn't have a release that she was told by the maternal grandmother that my client had been admitted to the hospital. This weekend I actually did receive a voice mail from my client stating that she was admitted to the hospital and would not be at today's court date. She was anticipating that she would be released tomorrow, however, I'm not so sure that that will actually happen. I do not have a release. I just found out where she was and they're not going to talk to me at the hospital. We're hoping that perhaps the guardian ad litem will be able to . . . verify information with- by presenting papers to them that she's been appointed as . . . the guardian ad litem.'' Following a discussion between the attorneys and the court about the role of the guardian ad litem, the court asked if the parties were ready to proceed. Counsel for the respondent mother objected: ‘‘We are not [ready], Your Honor . . . [b]ecause my client is not present. She's not competent. She can't be defaulted and she's admitted to the hospital. . . . And she also left me a voice mail requesting that because she can't be present that we not proceed without her and that we continue the matter. So I cannot agree to proceed in her absence.'' The court stated: ‘‘Your client is not being defaulted. Your client is incompetent and because she is incompetent a guardian ad litem was appointed because she was unable to understand the nature of the proceedings and to assist her counsel in her defense. That's the reason that we have [the] guardian ad litem.''

The guardian ad litem for the respondent mother also opposed proceeding: ‘‘I also object to the matter proceeding because although she is not competent to assist her counsel, that does not mean she is not competent to assist me as her guardian ad litem and, in fact, I believe it is required of me as guardian ad litem to first attempt to . . . explain proceedings in a manner that she can understand. She has the right to be present during her trial and it is also incumbent upon me as her guardian ad litem to request such accommodations as are necessary to best serve . . . my ward given her limitations.'' The attorney for the minor child stated that further delaying the proceedings would not be in the best interest of the child. After a brief recess, the hearing began with counsel for the respondent mother renewing her objection to the trial proceeding: ‘‘Your Honor, at this time I . . . would like to renew my objection to proceeding in my client's absence given that she is incompetent. The guardian ad litem is supposed to explain the process as it goes . . . along in a manner she can understand. She can't do that without her being present and my client did leave me a voice mail saying that she was involuntarily hospitalized and that she wanted this matter continued.''

The court then stated: ‘‘I'll point out that mother underwent a competency evaluation. It was determined that she is incompetent and in need of a guardian ad litem. She was determined to be incompetent because she was unable to understand the nature of the proceedings and to assist her lawyer with regard to her defense, and that [the guardian ad litem] was appointed . . . in May of 2019 and [the guardian ad litem] filed her appearance as [guardian ad litem] for mother shortly thereafter, and I understand it's been orally represented without any documentation or other corroboration that mother is not present today because she is undergoing treatment in a facility . . . .''

During the trial, the child's maternal grandmother testified that her daughter, the respondent mother, was hospitalized at the time of trial at Saint Raphael's Hospital. She testified that she knew that because she went to visit her there during the week before trial. The child's grandmother brought forms completed by the respondent mother's physician that the grandmother planned to submit to the Probate Court in order to seek conservatorship. These forms, admitted into evidence during the hearing, however, did not indicate that the respondent mother was hospitalized the morning of trial.

In the court's memorandum of decision finding the petitioner had proved the allegations of neglect as to the child, the court set forth the explanation for the respondent mother's failure to appear provided by her counsel. ‘‘Counsel for [the respondent mother] reported that she believed [respondent mother] was not present because [she] was in a hospital. Reportedly, her client's mother (maternal grandmother) had been told a week prior to the trial (by someone not identified) that [respondent mother] had been admitted to the hospital. Counsel's representation that [respondent mother] had been admitted to the hospital was based on a message from a social worker stating she'd been told by the maternal grandmother that her client had been admitted to the hospital. The social worker further stated to . . . counsel she'd been unable to verify the information. Counsel's representation that [her client] had been admitted to the hospital and could not...

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