In re Emoni W., No. 18841.

• Decision Date: 19 July 2012
• Docket Number: No. 18841.
• Parties: In re EMONI W. et al.
• Court: Connecticut Supreme Court

305 Conn. 723

48 A.3d 1

In re EMONI W. et al.^*

No. 18841.

Supreme Court of Connecticut.

Argued March 16, 2012.

Decided July 19, 2012.^**

Don M. Hodgdon, New London, for the appellant (respondent father).

Tammy Nguyen–O'Dowd, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Christine Perra Rapillo, Annette R. Appell and Josh Gupta–Kagan filed a brief for the Center for Children's Advocacy, Inc., et al., as amici curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.

ROGERS, C.J.

The primary issue in this case is whether the Interstate Compact on the Placement of Children (compact), General Statutes § 17a–175,¹ applies to the placement of children with an out-of-state noncustodial parent. The respondent father ² and his minor children, Emoni W. and Marlon W. (children), appealed to the Appellate Court from the ruling of the trial court that the compact applied to the placement of the children with the respondent, even though he was the children's noncustodial parent. Thereafter, the trial court awarded physical custody of the children to the respondent. A majority of the Appellate Court concluded that the appeals were moot and, accordingly, dismissed them for lack of subject matter jurisdiction. In re Emoni W., 129 Conn.App. 727, 736, 21 A.3d 524 (2011). This court then granted the respondent's petition for certification to appeal to this court, limited to the following issues: (1) “Did the Appellate Court properly dismiss the appeal as moot?”; and (2) “If the answer to the first question is in the negative, does ... § 17a–175 apply to an out-of-state, noncustodial parent?” In re Emoni W., 302 Conn. 917, 27 A.3d 369 (2011). We conclude that the respondent's appeal is moot, but falls within the “capable of repetition, yet evading review” exception to the mootness doctrine. Accordingly, we conclude that the Appellate Court improperly dismissed the appeal. We further conclude that the trial court improperly determined that § 17a–175 applies to out-of-state, noncustodial parents.

The Appellate Court's majority opinion sets forth the following facts and proceduralhistory. “The petitioner, the commissioner of children and families, became involved with the children because on April 28 and May 19, 2010, their mother failed to provide adequate supervision of them. On July 9, 2010, the mother was arrested and charged with four counts of risk of injury to a child, possession of crack cocaine with intent to sell, possession of marijuana with intent to sell, possession of a hallucinogenic with intent to sell and operating a drug factory. Also on July 9, 2010, the children were removed from the mother's home under a ninety-six hour hold pursuant to General Statutes § 17a–101g.

“On July 12, 2010, the court granted the petitioner's ex parte motions for orders of temporary custody as to the children. On this date, the petitioner, for the first time, became aware of the respondent. The petitioner learned that the respondent was living in Pennsylvania and that he previously had been responsible for the children's care for extended periods of time during school holidays. The petitioner also became aware that the respondent wanted to have the children live with him after their mother had been arrested.

“On July 16, 2010, a preliminary hearing was held concerning the petitioner's orders [of] temporary custody. At this hearing, the respondent argued that § 17a–175 did not apply to him as a noncustodial parent and requested that the court allow him to take custody of the children. The court did not rule in response to the respondent's request but, instead, scheduled oral argument on the issue of whether § 17a–175 applied to an out-of-state, noncustodial parent. [The court also ordered the petitioner to initiate a study pursuant to the compact to determine if a proposed placement with the respondent in Pennsylvania would be contrary to the interests of the children.] On July 23, 2010, the court concluded that § 17a–175 does apply to the placement of children with out-of-state, noncustodial parents. The children and the respondent filed separate appeals from this decision on July 30 and August 5, 2010, respectively.

“At a hearing on September 16, 2010, the [trial] court reported that it received the results of the compact study, authorizing placement of the children with the respondent in Pennsylvania on the condition that the court order six months of protective supervision. On this same date, the court adjudicated the children neglected and granted joint legal custody of the children to the respondent and the mother with physical custody in the respondent. The court also ordered protective supervision for a period of six months with the respondent. At the time of oral argument in [the Appellate Court], the children were living with the respondent.” In re Emoni W., supra, 129 Conn.App. at 729–31, 21 A.3d 524.

After the trial court awarded physical custody of the children to the respondent, the Appellate Court, sua sponte, ordered the parties to submit supplemental briefs addressing whether the claims raised by the respondent and the children in their appeals were moot and, if so, whether they fell within the “capable of repetition, yet evading review” exception to the mootness doctrine. Id., at 731, 21 A.3d 524. The majority of the Appellate Court ultimately concluded that the claims were moot and that they did not fall within that exception to the mootness doctrine because there was not a “strong likelihood that the inherently limited duration of the action will cause a substantial majority of cases raising the same issue to become moot prior to final appellate resolution.” ³ (Internal quotation marks omitted.) Id., at 735, 21 A.3d 524. Accordingly, the Appellate Court dismissed the appeals for lack of subject matter jurisdiction. Id., at 736, 21 A.3d 524.

Thereafter, the respondent brought this certified appeal claiming that: (1) the majority of the Appellate Court improperly determined that his appeal did not fall within the “capable of repetition, yet evading review” exception to the mootness doctrine; and (2) the trial court improperly determined that § 17a–175 applies to out-of-state noncustodial parents.⁴

I

We first address the respondent's claim that the majority of the Appellate Court improperly determined that his appeal did not fall within the “capable of repetition, yet evading review” exception to the mootness doctrine. We agree with the respondent.

“Our cases reveal that for an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature 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, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, 233 Conn. 370, 382–83, 660 A.2d 323 (1995).

In the present case, there is no dispute that the second and third prongs of this test have been satisfied. The dispute is over whether, in the substantial majority of cases, the claims that, (1) § 17a–175 does not apply to out-of-state parents, and (2) if it does, the statute is unconstitutional, will evade review because those claims will become moot before the appeal is concluded. The Appellate Court concluded that the statutory question will not evade review because “the receiving state disapproves of the placement of a child with the noncustodial parent almost half of the time that a compact study is requested. In these situations where placement is denied, any order by the court applying § 17a–175 to out-of-state, noncustodial parents will not become moot.” (Emphasis in original.) In re Emoni W., supra, 129 Conn.App. at 735, 21 A.3d 524.

We agree with the Appellate Court that the statutory question of whether § 17a–175 applies to out-of-state parents does not meet the “evading review” requirement because a substantial number of cases in which that issue arises, namely, those in which the placement is denied, will not become moot before the appeal can be concluded. We also conclude, however, that the constitutional claim raised by the respondent in the present case meets this requirement. Specifically, the respondent claims that, when the placement of a child with a parent is approved pursuant to the recommendation of a compact study, the application of § 17a–175 to the parent violates substantive due process principles by interfering with the parent-child relationship during the period between the date that the study was ordered and the date that placement is approved, which is a more protracted period than it would be if the petitioner conducted an investigation into parental fitness. ⁵ If this court were to hear an appeal in a case in which placement was denied on the basis of a study ordered pursuant to § 17a–175, the court could conclude that the statute applies, and it also could address any claim that the statute violates procedural due process principles because, for example, it does not provide any opportunity for judicial review of the compact study. The court would not be able, however, to reach the substantive due process claim raised by the respondent in the present case, namely, that his right to act as a parent was unduly delayed,...