In re Haley B.

• Decision Date: 18 February 2003
• Docket Number: (SC 16688)
• Citation: 815 A.2d 113,262 Conn. 406
• Court: Connecticut Supreme Court
• Parties: IN RE HALEY B.

262 Conn. 406

815 A.2d 113

IN RE HALEY B.¹

(SC 16688)

Supreme Court of Connecticut.

Argued November 26, 2002.

Officially released February 18, 2003.

Sullivan, C. J., and Borden, Norcott, Katz and Vertefeuille, Js. Peter T. Poulos, with whom was David E. Marmelstein, for the appellant (intervening respondent).

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 appellee (petitioner).

Opinion

NORCOTT, J.

The intervening respondent (respondent),² the maternal grandmother of Haley B., a minor in the custody of the department of children and families (department), appeals from the judgment of the Appellate Court dismissing her appeal from the trial court's decision denying her motion for custody or guardianship as untimely. The respondent claims that the appeal period commenced when the trial court altered the terms of its decision, not when the trial court rendered its original decision. Accordingly, the respondent contends, her appeal was timely filed. The respondent also contends that the Appellate Court abused its discretion by denying her request to file a late appeal. We conclude that the respondent's appeal was timely and, accordingly, we reverse the judgment of the Appellate Court.³

The record discloses the following facts and procedural history. Haley was born on September 9, 1999. In October, 1999, the trial court adjudicated Haley a neglected child, and committed her to the custody of the petitioner, the commissioner of children and families, after Haley had sustained unexplained facial bruising. On that same day, the department placed Haley in the respondent's home as a foster child. In October, 2000, the department removed Haley from the respondent's home following repeated violations of department orders and misrepresentations to the department, including misrepresentations in response to a department inquiry concerning allegations that she had allowed Haley to come into contact with a convicted sex offender. In December, 2000, the respondent moved to intervene in the neglect proceeding, and, after being granted intervenor status, requested that Haley be returned to her custody as a foster child, or, in the alternative, that guardianship be transferred to her. Following a hearing, the trial court denied the respondent's motion for custody or guardianship on July 20, 2001, in the presence of the parties. The trial court, however, in denying custody to the respondent, also stated that, because of the bond that had formed between the respondent and the child, "[s]upervised visitation with [the respondent] is ordered, without prejudice, to be held at least one hour per week." (Emphasis added.) The trial court also ordered that the matter of the termination of parental rights be continued until later in August. The court ordered that a transcript be made of its oral decision. The transcript was sent to all counsel of record on August 7, 2001, after the trial court had signed it on August 6, 2001. Thereafter, the trial court set a date for a hearing on the termination of parental rights for Haley's parents of August 16, 2001.

Upon notification by the assistant attorney general representing the department that he intended to seek clarification of the trial court's decision with regard to the respondent's visitation with Haley at the termination of parental rights hearing, counsel for the respondent appeared in court at the hearing to address the department's proposed clarification.⁴ At the hearing, the department explained that, prior to the court's ruling on the respondent's motion, the department had allowed the respondent visitation with Haley on a once per month basis. The department also claimed that, although the respondent had inquired about weekly visitation, the department wanted the decision "clarified" to reflect the prior status quo, namely, monthly visitation.⁵ The respondent, in response, contended that she had taken the trial court's decision at "face value" and assumed that, as the trial court indicated in its original July 20 decision, visitation would be allowed on a weekly basis.⁶ The trial court then treated the department's request as an oral motion for clarification and stated: "With respect to visitation. It was the intent of the court to maintain the status quo. Not to increase, but not to decrease the visitation. So that to the extent the parties agree that [the respondent] was exercising monthly visitation, then that was the intent of the court to maintain that.... So to the extent that the request to clarify or correct the record then is that the visitation is as it was, which apparently was monthly. So, it would be at a minimum, monthly visitation." (Emphasis added.)

On August 31, 2001, the respondent appealed from the trial court's decision denying her custody or guardianship of Haley to the Appellate Court. The department, thereafter, moved to dismiss the respondent's appeal based on the respondent's failure to file her appeal within the twenty day period prescribed by Practice Book § 63-1 (a).⁷ The department claimed that the twenty day period commenced on the date on which notice of the judgment was sent, which, according to the department, was the original August 7 notice, and, accordingly, the respondent's appeal was untimely. The Appellate Court granted the department's motion to dismiss, and, subsequently denied the respondent's motion for permission to file a late appeal. We thereafter granted the respondent's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly (1) dismiss the [respondent's] appeal on the ground of untimeliness, or (2) deny the [respondent's] request for permission to file a late appeal?" In re Haley B., 259 Conn. 928, 793 A.2d 250 (2002). We conclude that, under the circumstances of this case, the respondent's appeal was timely. Accordingly, we reverse the judgment of the Appellate Court.

As a threshold matter, we must address the standard of review. The facts underlying this appeal are undisputed. The only issue before us, therefore, is whether the Appellate Court properly determined that the appeal period had commenced on August 7, 2001, the date that notice of the trial court's decision on the respondent's motion for custody or guardianship was mailed, rather than on August 16, 2001, the date that the trial court changed its original order. Because this presents a question of law, our review is plenary. Therefore, "we must decide whether [the court's] conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000).

On the merits of the appeal, the respondent claims that the Appellate Court improperly granted the department's motion to dismiss for filing an untimely appeal because when the trial court altered the availability of visitation from once a week to once a month, a new appeal period commenced. Accordingly, the respondent claims, because the appeal was filed within twenty days after the subsequent alteration of the August 7 order, the appeal was timely. The department claims in response that because the subsequent order by the trial court allowing monthly, rather than weekly, visitation merely clarified the trial court's original visitation order, the clarification did not give rise to a new appeal period. The department contends, therefore, that the Appellate Court properly dismissed the respondent's appeal as untimely. We agree with the respondent.

Practice Book § 63-1 (a) provides that, "[u]nless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given. . . ." The rules of practice specifically applicable to juvenile matters impose the same requirements. See Practice Book § 79-1. The rule further prescribes, however, that "[i]f a motion is filed within the appeal period that, if granted, would render the judgment, decision or acceptance of the verdict ineffective, a new twenty-day period for filing the appeal shall begin on the day that notice of the ruling is given. . . ." Practice Book § 63-1 (c) (1). Motions that, if granted, would render a judgment, decision, or acceptance of the verdict ineffective include motions that seek any alteration of the terms of a judgment or decision. Id. Conversely, motions for clarification or an articulation, as opposed to alteration, of the terms of the judgment or decision do not give rise to a new appeal period. Id. The issue in the case presently before us, therefore, is whether the trial court's subsequent ruling decreasing the respondent's right to visitation from once per week to once per month, constituted an alteration or modification of the terms of the decision, resulting in a new twenty day appeal period, or merely a clarification, which would not give rise to a new appeal period.

We note at the outset that, despite the department or the trial court's characterization of the motion, we examine the practical effect of the trial court's ruling in order to determine its nature. Jaser v. Jaser, 37 Conn. App. 194, 202, 655 A.2d 790 (1995). Put differently, even though the department's motion was labeled by the trial court as a motion for clarification, we look to the substance of the relief sought by the motion rather than the form. Whalen v. Ives, 37 Conn. App. 7, 15-16, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995). In order to determine the substance of the trial court's actions here, we begin by examining the definitions of both alteration and clarification.

An alteration is defined as "[a] change of a thing from one form or state to another; making a...