In re Yassell B.

• Decision Date: 22 November 2021
• Docket Number: AC 44478
• Citation: 267 A.3d 316,208 Conn.App. 816
• Parties: IN RE YASSELL B.
• Court: Connecticut Court of Appeals

208 Conn.App. 816

267 A.3d 316

IN RE YASSELL B.^*

AC 44478

Appellate Court of Connecticut.

Argued September 9, 2021

Officially released November 22, 2021^**

James P. Sexton, Hartford, assigned counsel, with whom was John R. Weikart, assigned counsel, for the appellant (Carlos G.).

Joshua D. Michtom, assistant public defender, for the appellee (respondent father Daniel B.).

John E. Tucker, assistant attorney general, with whom, on the brief, were William Tong, attorney general, Clare E. Kindall, solicitor general, and Evan M. O'Roark, assistant attorney general, for the appellee (petitioner).

Prescott, Alexander and DiPentima, Js.

PER CURIAM.

In this neglect proceeding, Carlos G. appeals from the judgment of the trial court on the motion to adjudicate the paternity of Yassell B. filed by the petitioner, the Commissioner of Children and Families (commissioner), in which the court determined that he was not the legal father of Yassell and dismissed him as a party to the neglect proceeding.¹

On appeal, Carlos G. claims that the trial court improperly (1) afforded full faith and credit to the prior judgments regarding paternity rendered in New York (New York judgments), (2) applied the doctrines of res judicata and collateral estoppel to give the New York judgments preclusive effect, and (3) concluded that it was in the best interest of Yassell that the respondent Daniel B. remain the legal father of Yassell. Before this court, Daniel B. argued that the appeal has become moot due to the resolution of the underlying child protection action, which included a motion for an order of temporary custody and a neglect petition alleging that Yassell had been abused by the respondent Matilde F. We ordered the parties to submit supplemental briefs specifically addressing whether (1) Carlos G.’s claim was moot due to the resolution of the underlying child protection action and (2) vacatur of the paternity determination would be an appropriate remedy. After considering the parties’ supplemental briefs and the record in this case, we conclude that Carlos G.’s claim is moot and vacatur is appropriate.

The following facts, as found by the trial court, and procedural history are relevant. The respondents, Matilde F. and Daniel B., "were married for a number of years and resided in New York. They have a daughter, Shairi, who was born in 2005. Yassell was born in 2011, while [Matilde F.] and [Daniel B.] were married. [Daniel B.] is named as father on Yassell's birth certificate. ... On October 12, 2012, [Matilde F.] and [Daniel B.] were divorced. The judgment of divorce issued by the New York Supreme Court ... identified Shairi and Yassell as the ‘children of the marriage’ and awarded sole custody to [Matilde F.]. [Daniel B.] was awarded reasonable rights of visitation and ordered to pay child support for the two children ....

"In June, 2015, a DNA [paternity] test was conducted by [Laboratory Corporation of America] in Hempstead, N.Y.... The report states that [Carlos G.] and Yassell were tested on June 2, 2015, and the results rendered on June 10, 2015, indicate a 99.99 percent probability that [Carlos G.] is Yassell's father.

"On April 4, 2016, [Carlos G.] commenced a paternity action in New York Family Court, seeking to establish his paternity of Yassell. According to the ‘Decision and Order after Fact Finding’ rendered in that proceeding ... a hearing was conducted on [Carlos G.’s] petition ...." In that proceeding, DNA evidence of paternity was not presented to the court for its consideration. "At the conclusion of the hearing, based on the application of New York statutes and the court's findings as to the credibility of witnesses, the court found that [Carlos G.] had failed to meet his burden of proof because he failed to present clear and convincing evidence to rebut the presumption of legitimacy. The court dismissed [Carlos G.’s] paternity petition, leaving in effect the adjudication of the New York Supreme Court that Yassell was a ‘child of the marriage’ of [the respondents]."

In 2017, Matilde F., Shairi and Yassell moved to Connecticut where they lived with Carlos G. On September 18, 2020, the commissioner instituted the underlying neglect action by filing a motion for an order of temporary custody and a petition alleging that Matilde F. had abused Yassell. The court, C. Taylor, J ., granted the commissioner's motion and vested temporary custody of Yassell in the commissioner. On September 25, 2020, the trial court, Huddleston, J ., held a preliminary hearing on the order of temporary custody, at which both Carlos G. and Daniel B. appeared and claimed to be the father of Yassell. On September 29, 2020, the commissioner filed a motion to adjudicate paternity of Yassell. The commissioner argued that paternity should be determined prior to addressing the merits of the contested order of temporary custody to determine who should participate in that proceeding. During the pendency of the neglect proceeding, both the respondents, Matilde F. and Daniel B., and Carlos G. had weekly supervised visits with Yassell.

The court held a hearing on the commissioner's motion to adjudicate paternity on September 30 and November 9 and 23, 2020. On November 25, 2020, the court issued its ruling on the motion to adjudicate paternity. The court concluded that the "paternity determinations by the state of New York should be afforded full faith and credit² and that the New York findings that [Daniel B.] is Yassell's father should not be disturbed." (Footnote added.) The court also concluded, in the alternative, that, even if it did not give the New York paternity adjudication full faith and credit, "the court finds that it is in Yassell's best interest to preserve the parent-child relationship with [Daniel B.] that has existed since his birth. ... [Carlos G.] is hereby dismissed as a party to the proceeding." This appeal followed.

Additionally, on November 25, 2020, the trial court accepted the plea of nolo contendere entered by Matilde F. to the allegations of abuse and adjudicated Yassell as abused and ordered a period of protective supervision, which terminated on March 25, 2021. Hence, during the pendency of this appeal, the underlying neglect proceeding was resolved and Yassell was returned to the custody of Matilde F. Having considered the entirety of the record, including the supplemental briefs of the parties, we conclude that Carlos G.’s claim is moot.

"Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction. ... [A]n 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.) In re Naomi W. , 206 Conn. App. 138, 143, 259 A.3d 1263, cert. denied, 338 Conn. 906, 258 A.3d 676 (2021). "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 Forrest B ., 109 Conn. App. 772, 775, 953 A.2d 887 (2008).

We conclude that the appeal before us is moot because there is no actual controversy from which this court can grant any practical relief to Carlos G. Carlos G.’s appeal of the trial court's determination of paternity arose out of a neglect proceeding. The court addressed the issue of paternity only in order to determine which parties had cognizable interests at stake in that proceeding. During the pendency of this appeal, however, the underlying neglect proceeding was resolved. Yassell has been returned to the custody of his mother, Matilde F., and the period of protective supervision has expired. As a result, adjudicating the paternity of Yassell in the context of this case will afford Carlos G. no practical relief because, in light of the termination of this neglect proceeding, no orders will be issued that could affect Carlos G.’s alleged interest in or relationship to Yassell. Thus, there is no actual controversy from which this court can grant practical relief. See In re Alba P.-V ., 135 Conn. App. 744, 746–47, 42 A.3d 393 (dismissing appeal as moot when, during pendency of appeal from trial court's judgment adjudicating children neglected and ordering period of protective supervision, period of protective supervision expired), cert. denied, 305 Conn. 917, 46 A.3d 170 (2012).

Having concluded that this appeal is moot, we next must determine whether vacatur of the underlying Connecticut paternity judgment is appropriate. "Vacatur is commonly utilized ... to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences. ... In determining whether to vacate a judgment that is unreviewable because of mootness, the principal issue is whether the party seeking relief from [that] judgment ... caused the mootness by voluntary action. ... A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment. ... The same is...