Nunez, In re
| Citation | 165 Conn. 435,334 A.2d 898 |
| Parties | In re Rosa NUNEZ. |
| Decision Date | 14 November 1973 |
| Court | Supreme Court of Connecticut |
Donna P. Murphy, New Britain, with whom, on the brief, was Robert G. Fracasso, New Britain, for appellant Rosa Nunez.
Mary P. Ryan, .asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for the appellee, the state commissioner of welfare.
Before HOUSE, C.J., and COTTER, SHAPIRO, MacDONALD and BOGDANSKI, JJ.
This case originated in the Juvenile Court where the welfare commissioner petitioned the court that parental rights in William, Juan, Rosa, Virginia and Thomas Nunez be terminated. The rights of the father as to Rosa, Virginia and Thomas Nunez were terminated on the ground that he abandoned the children within the meaning of General Statutes § 17-43a. Pursuant to the same statute the rights of the mother, Rosa Nunez, to the same three children were terminated on the grounds that she was unable to offer the care necessary for the children 'by reason of continuing mental condition (retardation)' and that 'there are reasonable grounds to believe that such condition would exist for an undeterminate time.' The court did not enter an order terminating the parental rights in and to the two older children, William and Juan. All of the children previously had been committed to the welfare commissioner as neglected children on February 21, 1967. The mother appealed to the Superior Court. The father did not appeal. The matter was there heard at a domestic relations session on a motion to erase. The motion was granted as to the two older children, William and Juan, on the ground that the orders did not constitute final judgments, since the Juvenile Court had some doubt as to the availability of adoptive homes for William and Juan, and reserved its decision in their cases in adjudicating the termination of the mother's parental rights based on the ground of physical and mental defect until it was assured that adoptive homes were available. We find no error in this ruling. General Statutes § 17-70 provides that the appeal may be taken only from a final judgment or order of the Juvenile Court. A failure to do so constitutes a jurisdictional defect. Cone v. Darrow, 148 Conn. 109, 112, 167 A.2d 852.
The motion to erase was also granted as to the appeal concerning the other children, Rosa, Virginia and Thomas. The appellant claims that the court erred in concluding that 'the form of appeal which was taken verbatim from the form distributed by the Juvenile Court' was defective because it did not comply with § 17-70(b) of the General Statutes and did not substantially comply with Practice Book § 400 and Form 448. Section 17-70(b) provides, in part, that '(a)ny party at interest aggrieved by any final judgment or order of the court may, within ten days thereafter, appeal to the appropriate session of the superior court, as hereinafter provided' and § 17-70a of the General Statutes provides that '(t)he clerk of the juvenile court shall note the time of filing and forthwith forward to the clerk of the superior court . . . a certified copy of the appeal and order made thereon.'
The appeal in the form indicated, taken from the orders of September 29, 1971, was received and filed October 8, 1971, with the Juvenile Court for the third district at New Britain. A motion was granted permitting the appellant to file her appeal without fee and thereafter a certified copy of the appeal was filed in the Superior Court.
The trial court granted the motion to erase as to the children Rosa, Virginia and Thomas on the grounds that the appeal was 'defective in that it is returnable more than two months from its date(;) Connecticut General Statutes, Section 52-48 and Section 17-70(b)'; and that it contains Further, the court ruled that it was not substantially in accordance with Form 448 of the Practice Book.
A motion to erase is proper where want of jurisdiction appears on the record. Practice Book § 94. The record before us shows that the appeal was taken within ten days pursuant to § 17-70(b) and that the clerk of the Juvenile Court noted the time of filing on the appeal as required by § 17-70a, General Statutes. Thereafter, pursuant to that statute, the clerk of the Juvenile Court must forthwith forward a certified copy of the appeal and order made thereon to the clerk of the Superior Court.
Since questions have been raised about the severe hardship on the appellant in the event of an affirmance and concerning a finding of facts a discussion in connection with these matters is apropos. Section 17-70 permits an expeditious review in cases of this nature requiring that Juvenile Court appeals shall be privileged cases to be heard on the record of the proceedings and the clerk of the Juvenile Court is directed forthwith to prepare and file in the Superior Court a certified copy of the record of the case from which the appeal has been taken. Section 17-70(b) also provides, inter alia, that '(t)he superior court upon such appeal shall review the record so certified on the proceedings of the juvenile court and determine whether or not the court has found facts without evidence or has reached conclusions which cannot be reasonably derived from the facts found or the law applicable thereto or both, or has acted illegally or arbitrarily.' 1
In the record before us in connection with the appeal of Rosa Nunez, the mother, the Juvenile Court found in each case of the three children that she had been properly served and that by reason of a continuing mental condition (retardation) she was unable to offer the care necessary for each of the children and there were reasonable grounds to believe that such condition will exist for an undeterminate time and concluded that the parental rights of the mother should be terminated. There was evidence in the record certified to the Superior Court by the Juvenile Court upon which the latter cour...
To continue reading
Request your trial
-
Farricielli v. Connecticut Personnel Appeal Bd.
...to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. In re Nunez, 165 Conn. 435, 441, 334 A.2d 898 (1973); Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965); 4 Am.Jur.2d, Appeal and Error, § 4.' " Roy......
-
Juvenile Appeal, In re
...362 A.2d 532 (1975) (parents unable by reason of "continuing physical or mental condition" to render necessary care); In re Nunez, 165 Conn. 435, 334 A.2d 898 (1973) (father had abandoned children and mother was disabled by a continuing mental condition). The evidence presented by the commi......
-
Norwich Land Co. v. Public Utilities Commission
...right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. In re Nunez, 165 Conn. 435, 441, 334 A.2d 898; Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337; 4 Am.Jur.2d, Appeal and Error, § 4. Provisions in ......
-
Vecchio v. Sewer Authority of Town of Branford
...right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. In re Nunez, 165 Conn. 435, 441, 334 A.2d 898; Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337; 4 Am.Jur.2d, Appeal and Error, § 4." Norwich Land ......