IN RE ALLISON
Decision Date | 01 November 2005 |
Docket Number | No. 17288.,17288. |
Citation | 276 Conn. 146,883 A.2d 1226 |
Court | Connecticut Supreme Court |
Parties | In re ALLISON G. |
John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (petitioner).
Elisabeth Borrino, for the appellee (respondent father).
Brian R. Hole, with whom was Ben M. Krowicki, Hartford, for the appellee (respondent mother).
SULLIVAN, C.J., and NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.
The sole issue in this certified appeal is whether the Appellate Court properly dismissed as moot the appeal of the petitioner, the commissioner of children and families, from the judgment of the trial court adjudicating Allison G., the minor child of the respondent parents, Valerie Q. and Ernie G., uncared for and dismissing, sua sponte, the petitioner's allegation of neglect.2 See In re Allison G., 84 Conn.App. 718, 854 A.2d 1124 (2004). The petitioner claims that, although the adjudication of uncared for resulted in the child's commitment to the custody of the department of children and families (department), with stipulated conditions for the child's return, the petitioner's challenge to the trial court's judgment is not moot because: practical relief still may be obtained by an adjudication of the neglect allegation; prejudicial collateral consequences could arise should she not obtain such an adjudication; and the circumstances fall under an exception to the mootness doctrine. The respondents claim that the Appellate Court properly dismissed the appeal because the petitioner obtained all of the relief that she had sought by way of the trial court's order of commitment and the issuance of specific steps for reunification of the child with the respondents. The respondents contend, therefore, both that the department is not aggrieved by the judgment and that the appeal is moot. We conclude that the petitioner is aggrieved by the trial court's dismissal of the neglect allegation and that the appeal is not moot. Accordingly, we reverse the judgment of the Appellate Court.
The petitioner alleged the following facts in support of her petition seeking to have the trial court adjudicate Allison as uncared for and neglected. Allison was born on November 4, 1999. She has been diagnosed with cerebral palsy and is nonverbal. On the weekend of November 9 through 11, 2002, with the permission of the respondents, Allison was in the care of her aunt and uncle, Christine S. and Mark S. While in their care, Allison was sexually abused. On November 12, 2002, the respondents noticed a bruise on Allison's vagina. After consulting with family members, on November 13, the respondents brought Allison to the Children's Center at Saint Francis Hospital, where she was examined by Frederick Berrien, a physician. Berrien determined that Allison had sustained a blunt injury in the vaginal area and had been penetrated, although he could not determine the object with which she had been penetrated. He concluded that Allison had been sexually molested and determined that the abuse had occurred in the preceding days, sometime between November 9 and November 11. Mark S. and his son, Mark M., have been accused of sexually molesting children in the past. Mark M. had visited his father during the weekend of November 9.
The respondents admitted that they allowed Allison to spend almost every weekend with Christine S. and Mark S., even though they did not like to do so as Allison often returned home with bruises and other unexplained injuries. They further admitted that they could not keep Christine S. and Mark S. from taking care of Allison because such an action would cause disagreements within the family. Accordingly, the petition alleged that, "[d]espite knowledge of these unexplained injuries and [Mark S.'] previous history of sexually abusing children, the [respondents] have failed to protect [Allison] from further injuries and abuse...." It further alleged that Allison "has specialized needs in that she has been sexually abused, is nonverbal and has been diagnosed with cerebral palsy."
On the basis of these allegations, on November 15, 2002, the petitioner concurrently filed in the Superior Court, Juvenile Matters, an application seeking an order of temporary custody and, pursuant to General Statutes § 46b-129 (a), a petition alleging that Allison is: (1) neglected in that she "is being denied proper care and attention, physically, educationally, emotionally or morally," "is being permitted to live under conditions, circumstances or associations injurious to [her] well being" and "has been abused and has ... [both] physical injury or injuries inflicted by other than accidental means ... [and] a condition which is the result of maltreatment such as ... sexual molestation"; and (2) uncared for in that her home "cannot provide the specialized care which the physical, emotional or mental condition of the child/youth requires." On November 19, 2002, the trial court, Wollenberg, J., granted an order vesting the department with temporary custody of Allison.
An unusual turn of events that form the basis for the petitioner's appeal then ensued. On May 7, 2003, a scheduled pretrial settlement conference was conducted off the record before Hon. Frederica S. Brenneman, judge trial referee. In the course of that conference, the respondents indicated that they would be willing to admit to the allegation of uncared for and to agree both to allow Allison to be committed to the department's custody and to comply with the specific steps required by the petitioner for Allison's return to their home. The respondents would not admit that they were responsible for having failed to protect Allison from the sexual abuse and, therefore, would not admit to the neglect allegation.
Thereafter, the parties appeared on the record, at which time Judge Brenneman recited for the record the substance of the settlement conference and indicated that it would accept the respondents' "plea." The petitioner vigorously objected to proceeding on the matter. Specifically, the petitioner argued that the case was disputed in that she had not agreed to drop the neglect allegation in exchange for a plea on the uncared for allegation. The petitioner further argued that, because the case was disputed, it was improper for the same judge, who actively had participated in the settlement conference, to preside over the proceeding.
The trial court concluded that it properly could exercise jurisdiction over the petition in light of the respondents' admission to one of the two allegations. The court then explained to the respondents the facts underlying the uncared for allegation to which they had agreed to admit: The petitioner objected to the trial court's characterization of the facts, claiming that she had a right to a full trial to prove neglect and, specifically, that the respondents were responsible for the child's injuries because they knew or should have known about the abuse. The trial court concluded that a dual basis for adjudication would be a waste of judicial resources in light of the fact that the respondents did not deny that a relative had sexually abused Allison and were willing to agree to commit the child to the department's custody and to the conditions for reunification. It further determined that adjudication on the neglect allegation would serve "no reasonable purpose ... except possibly a punitive purpose...." Accordingly, the trial court dismissed the neglect allegation without prejudice and approved as final the specific steps for reunification previously proposed by the petitioner.3 The petitioner requested that the court stay its decision on the neglect petition and leave the temporary custody order in place pending the petitioner's appeal, but the trial court denied that request.
On May 23, 2003, the petitioner filed an appeal from the judgment of the trial court to the Appellate Court, claiming, inter alia, that the trial court improperly had failed: (1) to recuse itself at the conclusion of the settlement conference; and (2) to conduct an evidentiary hearing on the neglect allegation in the absence of the petitioner's assent to the dismissal of that allegation.4 On June 24, 2003, pursuant to Practice Book § 64-1, the petitioner filed a notice informing the appellate clerk that the trial court had neither issued a memorandum of decision nor signed a transcript of an oral decision. After the petitioner and the respondents filed briefs in the Appellate Court, the trial court issued a notice to the parties requesting that they submit briefs to it on the issue of "whether a civil plaintiff who pleads more than one ground for relief, and is awarded the full amount of damages claimed, based on a single ground, has an absolute right to a full evidentiary hearing on any or all of the alternative grounds pleaded." The trial court indicated therein that it would issue a written opinion by September 16, 2003. On October 27, 2003, the trial court signed a transcript of the May 7, 2003 hearing, adding a written notation, "[a]rticulation to be filed...
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