In re James L.

• Court: Appellate Court of Connecticut
• Citation: 55 Conn. App. 336,738 A.2d 749
• Parties: IN RE JAMES L.
• Decision Date: 19 October 1999

55 Conn. App. 336
738 A.2d 749

IN RE JAMES L.¹

(AC 17869), (AC 18155)

Appellate Court of Connecticut.

Argued June 2, 1999.

Officially released October 19, 1999.

O'Connell, C. J., and Landau and Sullivan, JS.

55 Conn. App. 337

Jennifer E. Davis, with whom, on the brief, were Debra Cohen and Robert D. Zaslow, for the appellants (respondents)

Susan T. Pearlman, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Gregory D'Auria, Benjamin Zivyon and Joseph Rubin, assistant attorneys general, for the appellee (petitioner).

Eugene P. Falco, for the minor child.

Opinion

LANDAU, J.

The respondents appeal from the judgment of the trial court terminating their parental rights

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with respect to their son, James L., rendered on a coterminous petition filed by the commissioner of children and families (commissioner).² On appeal, the respondents claim that the trial court improperly (1) denied the respondent mother's motion to dismiss the first and second counts of the petition made at the close of the commissioner's case, (2) denied the respondent mother's motion to remove documents attached to the petition, (3) denied the respondents' motions for a new trial and for reconsideration, (4) denied the respondent father's motion seeking disclosure of certain records in the possession of the department of children and families (department) and (5) relied on the respondents' choice to exercise their constitutional right to abort previous pregnancies as a collateral basis for finding that they had abandoned James L. We affirm the judgment of the trial court

The following facts and procedural history are relevant to these appeals. James L. was born on July 11, 1996, to the respondent parents and lived with them in Torrington. On August 21, 1996, at approximately 7:20 p.m., the respondent mother placed a 911 call to the Torrington police department to report that someone had walked into her apartment and kidnapped her son.³ The following day, the police found the minor child in a car owned by Carol Brooks.⁴ On August 30, 1996, the

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trial court granted a request by the commissioner for an order of temporary custody, and the commissioner thereafter filed a coterminous petition alleging that James L. was an abandoned child and seeking termination of parental rights

The trial court found, by clear and convincing evidence, that the respondents had abandoned the minor child in violation of General Statutes (Rev. to 1995) § 46b-120 (i), as amended by Public Acts 1995, No. 95-225, § 9, and General Statutes (Rev. to 1995) § 17a-112 (b) (1), and engaged in specific acts of parental omission and commission in violation of § 17a-112 (b) (3).⁵ The court found that "placing the child in commerce and delivering the child to Carol Brooks constituted the act of abandoning the child, an act of commission." It concluded that "[t]he callousness and the circumstances surrounding his sale [in exchange] for rent ensure that [James L.] will face [additional] painful awareness of the meaning of being an `unwanted' and `abandoned' child."⁶ The court found that these grounds for termination did not exist for more than one year preceding the filing of the petition but nevertheless waived the one year statutory requirement to promote the best interests of the child. The court, finding that it was in the best interests of the minor child to do so, granted the petition and terminated the respondents'

55 Conn. App. 340

parental rights. From that judgment, the present appeal ensued. Additional facts and procedural history will be discussed where relevant to issues in this appeal

I

Initially, the respondent mother claims that the trial court improperly failed to grant her motion to dismiss. We disagree.

Following the commissioner's presentation of her case-in-chief, the respondent mother asked the court to dismiss the first and second counts of the petition, which alleged abandonment and acts of omission or commission, respectively, on the ground that the commissioner had failed to make out a prima facie case. After the court denied the motion, the respondents presented their case, and, "[a]y, there's the rub."⁷

In her brief and at oral argument, the commissioner relied on the "waiver rule." "Under this rule, when a trial court denies a defendant's motion for a directed verdict at the close of the plaintiffs case, the defendant, by opting to introduce evidence in his or her own behalf, waives the right to appeal the trial court's ruling. See Dindo v. Grand Union Co., 331 F.2d 138, 141 (2d Cir. 1964); State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984). The rationale for this rule is that, by introducing evidence, the defendant undertakes a risk that the testimony of defense witnesses will fill an evidentiary gap in the [plaintiffs] case. State v. Rutan, supra, 440. On appeal in such cases, the question becomes whether... there is evidence in the entire record to justify submitting the matter to a trier of fact.... Warner v. Kewanee Machinery & Conveyor Co., 411 F.2d 1060, 1063 (6th Cir. 1969), cert. denied, 398 U.S. 906, 90 S. Ct. 1685, 26 L. Ed. 2d 65 (1970); see also 9 J. Wigmore, Evidence (4th Ed. 1981) § 2496, pp. 402-403. Although

55 Conn. App. 341

we have questioned the continuing viability of the waiver rule in the criminal context; see State v. Rutan, supra, 441; we have never questioned its applicability in the civil context. Id." (Emphasis in original; internal quotation marks omitted.) Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 756-57, 699 A.2d 81 (1997).

The respondents have articulated no persuasive reason why the rationale underlying the waiver rule should not operate in this case.⁸ We conclude, therefore, that the waiver rule precludes our review of the respondents' first claim.

II

In their second claim, the respondents assert that the trial court improperly denied the respondent mother's motion to remove documents attached to the petition. We disagree.

Further review of the trial court's factual findings and the procedural posture of this case is necessary for our analysis of this claim. The respondents argued to the trial court that attached to the petition were eleven police reports, four documents claiming to be certified voluntary statements and an unidentified and unsigned typed copy of a letter allegedly written by the respondent mother to the respondent father. The respondents claim that the inclusion of those documents "could impair the trial court's impartiality," "could taint future motions and proceedings" and "impeded the respondents' rights to cross-examine upon and challenge the documents when submitted at trial."

Further, the respondents argue that the inclusion of the documents violated Practice Book § 10-1, formerly

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§ 108, § 32-1, formerly § 1040.1 (1) and (2), and § 32-2, formerly § 1040.1 (3) and (4). Specifically, the respondents argue that § 10-1 "excludes the attachment of supporting evidence from pleadings," and that §§ 32-1 and 32-2 limit attachments to a petition to "statutory references reflecting the specific conditions which resulted in the subject of the petition, a summary of facts and a summons." This claim, however, lacks merit. While there is no quarrel that § 10-1⁹ states that the recitation of evidence is not appropriate in a pleading, it clearly does not exclude the attachment of exhibits. In fact, Practice Book § 10-29 (a), formerly § 141, provides in relevant part that "[a]ny plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length; but in such case the plaintiff shall ... file the original or a copy of such exhibit ... in court...." If the respondents' assertion is correct, it would make a nullity of § 10-29 (a).

Our conclusion finds support in those rules of practice governing procedure in juvenile matters in the family division of the Superior Court. Practice Book § 32-6, formerly § 1041.1 (1), requires the commissioner to provide supporting documents when seeking orders of temporary custody. See Pamela B. v. Ment, 244 Conn. 296, 302-303, 709 A.2d 1089 (1998). Moreover, General Statutes § 46b-129 (b) requires that the commissioner

55 Conn. App. 343

file, in addition to the petition, verified affirmations of facts when seeking an order of temporary custody. Most of the challenged documents here were notarized, and the record demonstrates that the commissioner filed these documents to support an order of temporary custody.

The respondents' further argue that "the [rules of practice do] not authorize attachment of numerous police reports with hearsay statements, alleged witness statements and other miscellaneous documents to petitions for the initiation of the judicial process in juvenile matters." This contention, however, is further undermined by the fact that many of the challenged documents were admitted at trial. Moreover, virtually all the information in the documents was contained in the department's social study and addendum to the social study, both of which were admitted as exhibits at trial.

The respondents have advanced absolutely no evidence to justify their contention that the trial court was "no longer impartial" as a result of having in its possession the challenged documents. It is axiomatic that the trial court is able to hear the testimony and to rely on only competent evidence in reaching its determination. Accordingly, we are satisfied, from our review of the record, that the trial court properly denied the motion to remove the documents from the petition.¹⁰

55 Conn. App. 344

III

In their third claim, as part of their amended appeal, the respondents maintain that the trial court improperly denied their motion for a new trial¹¹ and their motion to reconsider that denial. We disagree.

Nine months...