Opinion
No. 94-153
July 11, 1994
MEMORANDUM OF DECISION RE MOTION FOR EXTENSION OF TIME TO APPEAL
This is a proceeding in which the Department of Children and Families (Department) has filed a petition alleging that the respondent mother neglected her child, Damien G. Subsequent to the filing of the petition the court granted a motion to vest temporary custody of the child in the Department. See General Statutes § 46b-129(b). Thereafter, a hearing was held within ten days of that order as required by General Statutes § 46b-129(b). At the conclusion of that hearing, the court affirmed the order of temporary custody.
General Statutes § 46b-129(b) states: "If it appears from the allegations of the petition and other verified affirmations of fact accompanying the petition, or subsequent thereto, that there is reasonable cause to find that the child's or youth's condition or the circumstances surrounding his care require that his custody be immediately assumed to safeguard his welfare, the court shall either (1) issue an order to the parents or other person having responsibility for the care of the child or youth to show cause at such time as the court may designate why the court shall not vest in some suitable agency or person the child's or youth's temporary care and custody pending a hearing on the petition, or (2) vest in some suitable agency or person the child's or youth's temporary care and custody pending a hearing upon the petition which shall be held within ten days from the issuance of such order on the need for such temporary care and custody. The service of such orders may be made by any officer authorized by law to serve process, or by any probation officer appointed in accordance with section 46b-123, investigator from the department of administrative services, state police officer or indifferent person the expense for any temporary care and custody shall be paid by the town in which such child or youth is at the time residing, and such town shall be reimbursed therefor by the town found liable for his support, except that where a state agency has filed a petition pursuant to the provisions of subsection (a) of this section, the agency shall pay such expense."
The respondent has timely filed with this court a motion to extend the time within which she may appeal to the Appellate Court. Practice Book § 4009 provides, with certain exceptions not applicable here, that an appeal shall be filed within twenty days from the issuance of the notice of the judgment or order from which an appeal is taken. Practice Book § 4040(a) provides in pertinent part: "If an appeal has not yet been filed, the judge who tried the case may, for good cause shown, extend the time provided for filing the appeal. . . ." The respondent seeks an extension of time for two reasons: "[1]. So that the Motion for Articulation filed on this date may be heard and determined; and [2]. So that the affidavit required for the Application for Waiver of Fees, Cost and Security can be signed by the applicant/mother, who does not have a telephone. A letter has been sent to her on this date of which a response should be received."
The Department does not claim that the grounds stated in the motion do not provide good cause for the granting of an extension of time to appeal. However, the Department does object to the respondent's motion. The Department contends that the Appellate Court would not have jurisdiction of an appeal from the order of temporary custody because that order is not a final judgment.
"With the exception of certain statutory rights of appeal that are not relevant here, appellate jurisdiction is limited to appeals from final judgments. See General Statutes §§ 51-197a, 51-199 and 52-263; see also Practice Book § 4000." Madigan v. Madigan, 224 Conn. 749, 752 (1993). If there is no final judgment, an appellate court cannot reach the merits of the appeal. Smith v. Otis Elevator Co., 33 Conn. App. 99, 102 (1993). The determination of whether there is a final judgment and whether an appeal must be dismissed, however, is a regular function of the appellate courts; see Practice Book § 4056; not of this court.
Practice Book "Sec. 4056. Lack of Jurisdiction; Other Defects in Appeal Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal or return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. The court may on its own motion order that an appeal be dismissed for lack of jurisdiction."
The Department's objection must be overruled. Firstly, Practice Book § 4017 does not provide that a trial court may consider the merits of a party's appeal in determining whether to grant that party an extension of time within which to appeal. Where our rules have authorized a trial court to consider such a matter, they have expressly so provided. Thus Practice Book (1963) § 603 authorized the trial court to waive fees, costs and security necessary to perfect an appeal "[i]f the court is satisfied that the applicant is indigent and that the proposed appeal would not be frivolous. . . ." See State v. Hudson, 154 Conn. 631, 634 (1967). Not only does such a provision not exist in Practice Book § 4040, but it also has not been included in Practice Book § 4016 et seq. which now governs the waiver of fees and costs by the trial court. Secondly, an appellate "court must have exclusive power over the control of its own docket. . . . Our Supreme Court has recognized that an appellate court has the general supervisory power to protect its jurisdiction to hear appeals and that this power cannot be defeated by the arbitrary action of a trial court." State v. Robinson, 10 Conn. App. 520, 524 (1987), citing State v. S R Sanitation Services, Inc., 202 Conn. 300, 309-310, 521 A.2d 1019 (1987). Thirdly, in Madigan v. Madigan, supra, the Supreme Court held that an order of temporary custody is a final judgment for purposes of appeal. "[T]emporary custody orders are immediately appealable because an immediate appeal is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected." (Footnote omitted.) Id., 757. Madigan arose in the context of an action for dissolution of marriage. Id., 750. Temporary custody was awarded to one of the children's parents. Id., 750-51. That custody here was sought by and awarded to a state agency which has intervened in the constitutionally protected parent-child relationship militates more strongly in favor of holding such an order to be immediately appealable as a final judgment. Cf. In re Juvenile Appeal (83-CD), 189 Conn. 276, 283-292 (1983).
With respect to the merits of the respondent's motion, the court holds that the filing of a motion for articulation does not give rise to good cause for extending the time within which to appeal. Firstly, under the circumstances here, an articulation is not necessary in order to apprise the respondent that there is a decision to appeal from nor is an articulation necessary to enable the respondent to form an opinion as to whether that decision presents an appealable issue. Cf. Bridgeport Bowl-O-Rama, Inc. v Zoning Board of Appeals, 195 Conn. 276, 281-282 (1985). Secondly, the language of Practice Book § 4051, which provides for the filing of a motion for articulation, clearly contemplates that such a motion may only be filed after an appeal is pending. Gretsch v. Housatonic Cablevision Co., 8 Conn.L.Trib. No. 14, p. 13 (1981) (Cotter, S.T.R.). Thirdly, "[i]t is clear that the Practice Book provision has no time limits within which to file a motion for articulation." Maguire v. Maguire, 222 Conn. 32, 38 (1992). Therefore, an extension of time within which to appeal neither is necessary nor appropriate in order for the respondent to timely file her appeal.
Practice Book "Sec. 4051. Rectification of Appeal; Articulation An original and three copies of a motion for rectification shall be filed with the appellate clerk and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the appellate clerk. "Any motion seeking correction in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court or the appellate court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the court in which the appeal is pending under Sec. 4054. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based. "Corrections made before the record is prepared shall be included in it. If the record has been prepared, the appellate clerk may prepare a supplemental record, to be distributed in the same way as the original record."
That the respondent requires additional time in order to complete the application for waiver of fees, costs and security is good cause for granting her motion for an extension of time within which to appeal. General Statutes § 52-259(a) provides the "[t]here shall be paid to the clerks for entering each appeal to the supreme court, or the appellate court, as the case may be, two hundred fifty dollars. . . ." Practice Book § 4015 provides in relevant part that "[a]t the time of filing the appeal, the appellant. . . shall, unless . . . the costs have been waived pursuant to Sec. 4016, pay to the clerk of the trial court the fees provided by statute. The appeal. . . shall be accompanied with security for costs in the amount of $400. . . ." Practice Book § 4017 provides in relevant part with respect to civil cases: "If a party in any case where fees and costs may lawfully be waived is indigent and desires to appeal, that party may, within the time provided by the rules for taking an appeal, make written application, to the court to which the fees required by statute or rule are to be paid, for relief from payment of fees, costs and expenses. The application must be under oath and recite, or it must be accompanied by an affidavit reciting, the grounds upon which the applicant proposes to appeal and the facts concerning the applicant's financial status." The respondent's motion for extension of time reflects that such an affidavit has been prepared but that it must be signed by the respondent, who does not have a telephone. A letter from the respondent's attorney to the respondent is attached to the motion for extension of time. The letter requests the respondent to contact her attorney so that she may execute the affidavit. An extension of time to appeal may be granted "for good cause shown". While the representations of respondent's counsel are not under oath and ordinarily would not be evidence; Cologne v. Westfarms Associates, 197 Conn. 141, 153, 496 A.2d 476 (1985); here, the Department has not challenged the accuracy of these representations. See State v. Haye, 214 Conn. 476, 481-83, 572 A.2d 974 (1990) (request for continuance of probable cause hearing); State v. Williams, 203 Conn. 159, 163, 523 A.2d 1284 (1987); Mimms v. Planning Zoning Commission, Superior Court, Judicial District of Fairfield, No 0289405, p. 13n. 4 [1993 Ct. Casebase 5731] (1993). The necessity that the respondent, who does not have a telephone, communicate with her attorney and travel to the latter's office to execute the affidavit needed to obtain a waiver of fees and costs so that an appeal may be perfected satisfies the requirement of good cause.
Neglect proceedings are essentially civil in nature. In re Juvenile Appeal (84-AB), 192 Conn. 254, 263 (1984).
The motion for extension of time is granted to July 18, 1994.
Bruce L. Levin Judge of the Superior Court