In re R.

• Decision Date: 21 June 2011
• Docket Number: No. 32709.,32709.
• Citation: 129 Conn.App. 604,21 A.3d 883
• Parties: In re KIARA R.
• Court: Connecticut Court of Appeals

129 Conn.App. 604

21 A.3d 883

In re KIARA R.

No. 32709.

Appellate Court of Connecticut.

Argued April 19, 2011.Decided June 21, 2011.

Anne Louise Blanchard, with whom were Bet Gailor and, on the brief, Melanie Starks, for the appellant (respondent mother).John E. Tucker, assistant attorney general, with whom, on the brief, were George Jepson, attorney general, and Susan T. Pearlman and Benjamin Zivyon, assistant attorneys general, for the appellee (petitioner).DiPENTIMA, C.J., and BEACH and FLYNN, Js.BEACH, J.

The respondent mother ¹ appeals from the decision of the trial court not to rule on a portion of an emergency motion she had filed to restore, inter alia, her unsupervised visitation with her minor daughter but, rather, to refer the matter for an administrative hearing. The respondent claims that the court erred in (1) failing to hold an evidentiary hearing pursuant to General Statutes § 46b–129 (k)(1) and Practice Book § 35a–14 (f) after the petitioner, the commissioner of children and families, terminated her unsupervised visitation provided for in a permanency plan and (2) declining to exercise primary jurisdiction over the respondent's emergency motion to restore unsupervised visitation. For the reasons that follow, we dismiss the appeal as moot.

The record reflects the following. In 2006, the petitioner filed a petition alleging that the respondent's minor daughter, Kiara, was neglected. On January 17, 2007, the court found Kiara to be neglected and ordered a period of protective supervision, wherein Kiara was to reside with the respondent. At a hearing on April 29, 2008, the court granted the petitioner's motion to open and to modify the disposition of protective supervision to commitment and ordered that Kiara be committed to the care and custody of the petitioner as of May 8, 2009. On May 5, 2010, the court approved the petitioner's permanency plan to revoke commitment and to reunite Kiara with the respondent. On September 2, 2010, the respondent filed a motion to revoke commitment. On September 17, 2010, the respondent filed a motion for emergency relief, asking that the court order the petitioner to restore unsupervised visitation and family therapy sessions, both of which the petitioner had terminated. On September 29, 2010, the court heard argument on the motion for emergency relief.² The court ordered that counseling resume but stated that it would not issue orders regarding visitation. It suggested that if the respondent wished to pursue the issue of restoring unsupervised visitation, she should request an administrative hearing with the department of children and families (department) pursuant to General Statutes § 17a–15 (c). On November 5, 2010, the respondent filed the present appeal. The respondent argues that, in the circumstances of this case, the court was required to decide the visitation issue rather than referring it to an administrative agency.

On April 5, 2011, the petitioner filed a motion with this court to dismiss the respondent's appeal as moot. In its motion, the petitioner suggested that this appeal is moot because on March 31, 2011, subsequent to the filing of the appeal, the trial court granted the respondent's motion to revoke commitment, thereby returning Kiara to the respondent's care, although under protective supervision. At oral argument before this court, the parties addressed the issue of mootness and the claims on appeal. We conclude, and both the petitioner and the respondent agree, that the trial court's granting of the respondent's motion to revoke commitment renders this appeal moot. We cannot afford practical relief on the issue of visitation because Kiara now resides with the respondent. The respondent argues, however, in her objection to the petitioner's motion to dismiss, that her otherwise moot appeal is eligible for resolution under the “capable of repetition yet evading review” exception to the mootness doctrine. Because the petitioner's motion concerns our subject matter jurisdiction over the appeal, we must address the motion as a threshold issue.

“Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties.” (Internal quotation marks omitted.) New Image Contractors, LLC v. Village at Mariner's Point Ltd. Partnership, 86 Conn.App. 692, 698, 862 A.2d 832 (2004). “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.... 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.” (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 754, 826 A.2d 156 (2003).

“An otherwise moot question may qualify for review under the well established ‘capable of repetition, yet evading review’ exception to the mootness doctrine. See Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). In Loisel, our Supreme Court set forth three requirements that an otherwise moot question must satisfy in order to qualify for review under this exception. ‘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.’ Id., at 382–83, 660 A.2d 323.” In re Priscilla A., 122 Conn.App. 832, 836, 2 A.3d 24 (2010).

We begin our analysis with the first requirement of Loisel. “The first element in the analysis pertains to the length of the challenged action.... The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome.... [A] party typically satisfies this prong if there exists a functionally insurmountable time [constraint] ... or the challenged action had an intrinsically limited lifespan.” (Citations omitted; internal quotation marks omitted.) Id., at 836–37, 2 A.3d 24.

The respondent argues that the first Loisel requirement is satisfied because the statutory framework imposes a functionally insurmountable time constraint on parents who appeal decisions in relation to their children's court approved permanency plans. In support of her argument, she highlights the following statutes and rule of practice. Pursuant to § 46b–129 (k)(1), the petitioner is required to file a motion for review of a permanency plan within nine months after the placement of the child into care, and subsequent permanency hearings must be held not less frequently than every twelve months while the child remains in the petitioner's care. Any party opposing the permanency plan must file a motion in opposition not later than thirty days after the filing of the motion for review and the court must hold evidentiary hearings on any contested motion for review of a plan not later than ninety days after the filing of the motion. Pursuant to § 46b–129 (k)(1) and Practice Book § 35a–14 (f), the petitioner may move to modify a court approved permanency plan at any time within the twelve month period, and under § 46b–129 (m), the petitioner, a parent, or the child's attorney may file a motion to revoke commitment at any time but not more often than once every six months. A permanency plan that contains visitation provisions is subject, then, to frequent reviews and potential revisions. The respondent contends, therefore, that she and other parents who file motions and request hearings relating to the permanency plan and who are dissatisfied with a court's referring the matter to the department and file an appeal, are substantially likely to have their appeals rendered moot by a later order.

There are, then, time requirements regarding the relevant motions and hearings. These time requirements, however, do not demonstrate that the action on which the respondent bases her appeal is of inherently limited duration. On appeal, the respondent claims that the court erred (1) in declining to hold an evidentiary hearing or to issue any orders regarding the portion of her emergency motion in which she requested that the court order the petitioner to restore her unsupervised visitation with Kiara consistent with the permanency plan and (2) in declining to exercise primary jurisdiction over her emergency motion. The respondent's claims became moot when the court granted her motion to revoke commitment, thereby returning Kiara to her care under protective supervision. There is nothing to suggest that the statutory time requirements providing for review of permanency plans necessarily render decisions regarding primary jurisdiction moot. In addition, it is not strongly likely that other parents in a similar situation who file motions,...