Summary
vacating Appellate Court judgment that reversed trial court judgment “empowering the department [of children and families] and the foster parents to determine the propriety of any future visitation” to keep it from “spawning any legal consequences”
Summary of this case from State v. Charlotte Hungerford Hosp.Opinion
(SC 16555)
The respondent mother, whose child had been adjudicated to be neglected, committed to the custody of the department of children and families and placed in foster care, appealed to the Appellate Court challenging the trial court's denial of her motion for visitation. The Appellate Court reversed, in part, the judgment of the trial court, concluding that the trial court properly had denied the respondent's motion for visitation, but impermissibly had delegated to the department and to the foster parents "its independent obligation to determine and further the child's best interest." On the granting of certification, the department appealed to this court. While the appeal was pending, the respondent voluntarily relinquished her parental rights. Accordingly, the issues of this case not being capable of repetition yet evading review, the appeal was dismissed as moot.
Argued November 27, 2001
Officially released February 26, 2002
Petition by the commissioner of children and families to adjudicate the respondents' minor child neglected, brought to the Superior Court in the judicial district of Fairfield, Juvenile Matters at Bridgeport, where the respondent mother filed a motion for visitation; thereafter, the minor child's foster parents intervened in the action, and the case was tried to the court, Schuman, J.; judgment adjudicating the minor child neglected, committing the child to the temporary custody of the petitioner and denying the respondent mother's motion for visitation, from which the respondent mother appealed to the Appellate Court, Landau, Mihalakos and Daly, Js., which reversed in part the trial court's judgment and remanded the case with direction to vacate the order delegating to the petitioner and the foster parents the authority to determine whether future visitation with the respondent mother was in the child's best interests, and the petitioner, on the granting of certification, appealed to this court. Appeal dismissed; judgment vacated.
John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Benjamin Zivyon, assistant attorneys general, for the appellant (petitioner).
Carolyn C. Mihalek, for the appellee (respondent mother).
Sharon Wicks Dornfeld, for the appellees (intervening foster parents).
Opinion
This certified appeal arises from a petition by the department of children and families (department) for, inter alia, a determination of neglect as to the minor child, Candace H. (child). By agreement of the parties, the child was adjudicated neglected and was committed to the temporary custody of the department. On December 3, 1999, the department filed a motion with the trial court pursuant to General Statutes (Rev. to 1999) § 46b-129 (k)(1) for review and approval of a permanency plan with respect to the child. On February 3, 2000, the respondent mother of the child (respondent) filed a motion for visitation. After conducting a hearing, the trial court granted the department's motion for approval of the permanency plan and denied the motion for visitation. In denying the motion for visitation, the trial court determined that court ordered visitation was not in the child's best interests, but it did not bar future visitation entirely. Rather, the court concluded that the department might, in its discretion, together with the foster parents, permit future visitation by the respondent. On June 1, 2000, the department filed a petition for termination of parental rights as to the child.
We granted the petition of the department of children and families for certification to appeal from the judgment of the Appellate Court; In re Candace H., 63 Conn. App. 493, 776 A.2d 1180 (2001); limited to the following issue: "Did the Appellate Court properly conclude that the trial court impermissibly delegated to the department of children and families the responsibility of determining, in the future, whether visitation by the respondent mother is in the best interests of the child?" In re Candace H., 257 Conn. 907, 777 A.2d 686 (2001).
General Statutes (Rev. to 1999) § 46b-129 (k)(1) provides in relevant part: "Ten months after the adjudication of neglect of the child or youth or twelve months after the vesting of temporary care and custody pursuant to subsection (b) of this section, whichever is earlier, the commissioner shall file a motion for review of a permanency plan and to extend or revoke the commitment. Ten months after a permanency plan has been approved by the court pursuant to this subsection, unless the court has approved placement in long-term foster care with an identified person or an independent living program, or the commissioner has filed a petition for termination of parental rights or motion to transfer guardianship, the commissioner shall file a motion for review of the permanency plan to extend or revoke the commitment. . . ."
The respondent father, who is not a party to this appeal, consented to the termination of his parental rights on May 16, 2001.
On March 30, 2000, the respondent appealed to the Appellate Court from the trial court's denial of her motion for visitation with the child. The Appellate Court reversed, in part, the judgment of the trial court, concluding that the trial court properly had denied the respondent's motion for visitation; In re Candace H., 63 Conn. App. 493, 502, 776 A.2d 1180 (2001); but impermissibly had delegated to the department and to the child's foster parents "its independent obligation to determine and further the child's best interest." Id., 504. The department then filed its petition for certification to appeal to this court, which we granted. In re Candace H., 257 Conn. 907, 777 A.2d 686 (2001).
The child's paternal aunt and uncle are her foster parents. In re Candace H., supra, 63 Conn. App. 496.
On October 10, 2001, the respondent voluntarily relinquished her parental rights to the child. Thereafter, this court, sua sponte, ordered the parties to file supplemental briefs on the issue of whether the respondent's voluntary relinquishment of her parental rights rendered the appeal moot, and, if so, whether the appeal qualified for review under the "`capable of repetition, yet evading review'" exception to the mootness doctrine. Loisel v. Rowe, 233 Conn. 370, 382, 383-88, 660 A.2d 323 (1995). The department, which had filed a supplemental brief arguing that the issue was capable of repetition, yet evading review, subsequently filed a motion requesting, in the event that this court determines the appeal to be moot that this court vacate the judgment of the Appellate Court to the extent that it reversed the trial court's decision empowering the department and the foster parents to determine the propriety of any future visitation.
After examining the record and considering the briefs and oral arguments of the parties, we conclude that this appeal has been rendered moot and should be dismissed. See In re Jessica M., 250 Conn. 747, 749, 738 A.2d 1087 (1999). "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.) Giaimo v. New Haven, 257 Conn. 481, 493, 778 A.2d 33 (2001); State v. Daniels, 248 Conn. 64, 70, 726 A.2d 520 (1999); In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994). We further determine that the issue presently before the court is not capable of repetition, yet evading review and, therefore, does not qualify for review under the exception to the mootness doctrine as enunciated in Loisel v. Rowe, supra, 233 Conn. 382-88. We conclude, moreover, that the judgment of the Appellate Court in this matter should be vacated. Vacatur is appropriate when the public interest is served. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994).
"Vacatur is `commonly utilized . . . to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.' United States v. Munsingwear, Inc., 340 U.S. 36, 41, 71 S.Ct. 104, 95 L.Ed. 36 (1950)." In re Alex M., 59 Conn. App. 389, 393, 757 A.2d 66 (2000).