In re Emma F.

• Decision Date: 22 January 2015
• Docket Number: No. 19417.,19417.
• Citation: 107 A.3d 947,315 Conn. 414
• Court: Connecticut Supreme Court
• Parties: In re EMMA F. et al.

315 Conn. 414

107 A.3d 947

In re EMMA F. et al.^*

No. 19417.

Supreme Court of Connecticut.

Considered Dec. 23, 2014.

Decided Jan. 22, 2015^** .

Daniel J. Klau, Hartford, for the appellant (Connecticut Law Tribune).

Steven R. Dembo, Hartford, for the appellee (respondent mother).

Dana M. Hrelic, for the guardian ad litem.

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

Opinion

ROBINSON, J.

The Connecticut Law Tribune (newspaper) appeals¹ from the judgment of the trial court permanently enjoining it from publishing the contents of a habeas corpus petition filed in connection with this child protection case concerning the minor children, Emma F., Logan F., and Olivia F., of the respondent mother, Lisa F., and the respondent father, Eric F.² In this appeal, the newspaper challenges that injunction as an unconstitutional prior restraint that violates its free speech rights under the first amendment to the United States constitution, and article first, § 4, of the Connecticut constitution. Subsequent to the filing of the present appeal, however, the trial court, sua sponte, vacated the injunction, concluding that it was no longer warranted because of subsequent factual developments in this case. Thereafter, this court, sua sponte, ordered the parties to file statements concerning whether the trial court's vacatur order rendered the newspaper's appeal moot. Having considered the arguments of the parties concerning the effect of the trial court's vacatur of the injunction, we conclude that the appeal is moot. Contrary to the various arguments of the parties, we further conclude that present circumstances do not support: (1) review of the merits under the capable of repetition, yet evading review exception to the mootness doctrine; or (2) vacatur of the trial court's decisions to grant the respondent mother's motion for an injunction. Accordingly, we dismiss the appeal.

The record reveals the following relevant facts and procedural history. The respondents are parties to a pending marital dissolution proceeding. Their minor children are the subject of neglect proceedings pending on the trial court's juvenile docket, and have been in the custody of the Commissioner of Children and Families (commissioner) since an order of temporary custody was entered on March 20, 2014, and extended on April 4, 2014. On September 29, 2014, the trial court adjudicated the minor children as neglected, and ordered that they remain in the commissioner's custody pending reunification therapy. Thus far, the respondents have been unable to begin the court-ordered reunification therapy.

On October 28, 2014, the respondent father filed a petition for a writ of habeas corpus, contending that the minor children are unconstitutionally in the custody of the commissioner because he had received ineffective assistance of counsel during prior juvenile court proceedings. The detailed allegations in the habeas corpus petition concern matters that should have been kept confidential under the statutes and rules of practice governing juvenile court proceedings. But, because the respondent father filed the habeas corpus petition electronically as a civil matter using the Judicial Branch e-filing system, rather than as a confidential juvenile matter,³ the petition was temporarily available to the public as a newly filed civil case on the Judicial Branch website, at which time reporters employed by the newspaper learned about it. Although the habeas case was subsequently transferred to the juvenile docket and, thus, no longer appears on the Judicial Branch website, the content of the petition has since been published, and still appears, on other independent websites.

On November 20, 2014, Isaac Avilucea, a reporter for the newspaper, left the respondent mother a voice mail that informed her that he was writing a story about this case, and invited her to comment because the respondent father had accused her of abusing the minor children. On November 21, 2014, the respondent mother filed an ex parte motion seeking to prohibit the newspaper from publishing any information about this case, because such information is statutorily confidential under General Statutes § 46b–124,⁴ and asking the trial court to order the newspaper to show cause why a permanent injunction should not enter to that effect. The respondent mother claimed that the publication of a news story about this case would cause irreparable harm to her, particularly with respect to her professional reputation, especially since the juvenile court proceeding is confidential and she has neither been arrested nor found by a court to have abused her children. The trial court denied the ex parte motion, but scheduled the matter for a hearing on November 24, 2014; it also ordered that the newspaper be made a party and given notice of the hearing.

On November 24, 2014, following that hearing, the trial court issued an injunction directing the newspaper “and its agents and representatives not to publish the contents of the habeas corpus petition filed by [the] respondent father.” In an oral decision, the trial court attributed the improper public accessibility of the habeas petition to the respondent father's decision to file it electronically as a civil matter, rather than as a confidential juvenile matter.⁵ The trial court acknowledged the “presumptive unconstitutionality of a prior restraint,” but nevertheless relied on the minor children's privacy interests and found that “the state's interest in keeping the juvenile proceedings confidential is sufficiently weighted to overcome that presumption.”⁶ On the basis of this conclusion, and its determination that it was “unable to ascertain any less intrusive means that could mitigate against the harms that would occur from publication,”⁷ the trial court issued the November 24 injunction that, inter alia, prohibited the newspaper from publishing the content of the habeas corpus petition.⁸

On November 25, 2014, the newspaper appealed from the judgment of the trial court imposing the November 24 injunction, and filed an emergency motion for a stay of that order the following day. On November 28, 2014, the trial court filed a supplemental memorandum of decision that expanded on its oral decision explaining the November 24 injunction,⁹ but also scheduled an immediate hearing about whether it should vacate that injunction. On December 1, 2014, the trial court conducted that hearing.

On December 3, 2014, the trial court issued a memorandum of decision vacating the November 24 injunction. The trial court stated that it had “reconsidered [the November 24 injunction] that the [newspaper] not publish information it obtained about these juvenile matters in light of the dissemination of the [respondent] father's habeas corpus petition, after the original order, on the websites of at least two news organizations and, in addition, by other accounts in the online media discussing the contents of the petition and other facts about these juvenile matters.” The trial court observed that these factual developments “affect[ed] the balancing of interests that the court must consider in determining whether an order of prior restraint on the press is necessary to protect an interest of the ‘highest order.’ ” It stated that, “[h]owever important the interests of the state and these children in the confidentiality of juvenile records and proceedings, continuing to order the [newspaper] not to publish this information, much of which has already been published elsewhere, will no longer have any effect in protecting these interests.” The court determined that “the only narrow tailoring that the court can now employ to protect the children” is to “prohibit the parties from any further disclosures, rather than barring the [newspaper] from printing information that is already in the public domain.” Thus, the trial court found that “restricting the [newspaper] from publishing information it has already acquired no longer serves any effective purpose,” and, accordingly, vacated the November 24 injunction.¹⁰

Upon learning on December 3, 2014, that the trial court had vacated the November 24 injunction, this court marked over the newspaper's pending emergency motion for a stay. This court then issued a sua sponte order directing the parties to file statements concerning whether the appeal should be dismissed as moot in light of the trial court's decision to vacate the November 24 injunction.

In response to this court's order, the parties filed memoranda conceding that the newspaper's appeal is moot, but seeking review of the merits on the ground that the present appeal concerns a matter that is capable of repetition, yet evading review. Should we decline, however, to review this appeal on its merits, the newspaper asks us to vacate the trial court's oral and supplemental decisions relating to the now vacated November 24 injunction. The respondent mother and the guardian ad litem oppose that request. We address each issue in turn.

I

It is well established that “[m]ootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve.... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.... 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.” (Internal quotation marks omitted.) Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 366, 957 A.2d 821 (2008).

The parties agree that the newspaper's appeal has been rendered moot by the...