Opinion
No. H14-CP08-009409-A
February 23, 2010
MEMORANDUM OF DECISION RE MOTION TO APPOINT SUCCESSOR JUDGE
This matter comes to the court by way of a termination of parental rights petition filed by the Department of Children and Families on November 3, 2008 seeking to terminate the parental rights of the biological mother and father of Dana. The trial on the petition and a consolidated hearing on a Motion to Review Permanency Plan filed December 22, 2008 together with the objections thereto occurred on October 26 and 27, 2009.
On February 11, 2010, the petitioner filed a Motion to Appoint Successor Judge by Agreement of the Parties as the trial judge passed away prior to rendering a decision on the pending matters. The petitioner's motion was heard on February 23, 2010.
General Statutes § 51-183f "authorizes further proceedings before another judge where the original trial judge is unable to complete proceedings due to death, disability or resignation." Stevens v. Hartford Accident and Indemnity Company, 29 Conn.App. 378, 384, 615 A.2d 507 (1992). The court in Stevens identified the following six steps that must be followed by a successor judge to protect the due process rights of the parties in the event a judge retires due to death, disability or resignation during a trial to the court: "(1) become familiar with the entire existing record, including, but not necessarily limited to, transcripts of all testimony and all documentary evidence previously admitted; (2) determine, on the basis of the such record and any further proceedings as the court deems necessary, whether the matter may be completed without prejudice to the parties; (3) if the court finds that the matter may not be completed without prejudice to the parties it should declare a mistrial, but if the court finds that the matter may be completed without prejudice to the parties then; (4) upon request of any party, or upon the court's own request, recall any witnesses whose testimony is material and disputed and who is available to testify without due burden; (5) take any other steps reasonably necessary to complete the proceedings; and (6) render a decision based on the successor judge's own findings of fact and conclusions of law." Stevens v. Hartford Accident and Indemnity Company, supra, 29 Conn.App. 386. In Gorelick v. Montanaro, 94 Conn.App. 14, 20-21, 891 A.2d 41 (2006), the court, in footnote 14, noted, as a general rule, due process considerations require that a party to a case tried before a judge without a jury is entitled to a decision by the judge who heard the evidence. "The due process concern, however, is not present when parties have stipulated to a decision by a successor judge, who will act on the basis of a review of the evidence that was before the original trial judge." Gorelick v. Montanaro, supra, 94 Conn.App. 20, fn.14. See also Nahas v. Nahas, 25 Conn.App. 595, 597 (1991), where a successor judge, acting in accordance with the parties stipulation, rendered judgment based on the record completed before the original trial judge.
At the hearing on the petitioner's motion for appointment of a successor judge, (i) by agreement, the parties waived the right to have a decision rendered by the trial judge and consented to the granting of the petitioner's motion to have a successor judge appointed; (ii) the court inquired of the parties if they would wish to recall any witness whose testimony is material and disputed and/or introduce documentary evidence in lieu of recalling any such witnesses and the parties declined to do so; (iii) as transcripts of the trial do not include the closing arguments of counsel, the parties agreed the court may listen to the same on the court room monitoring program, in lieu of having the same transcribed and distributed; and (iv) pursuant to General Statutes § 51-183b, the parties waived the requirement that judgment be rendered within one hundred twenty days from the completion of the original trial and agreed to extend the time for a period of one hundred twenty days from February 23, 2010.
The court reviewed and became familiar with the entire record. The court determined the proceedings in this matter had been completed, absent the rendering of a decision on the department's petition and the pending motion to review permanency plan. Following the guidance provided by the courts in Stevens v. Hartford Accident Indemnity Co., supra, 29 Conn.App. 383-84 and Gorelick v. Montanaro, supra, 94 Conn.App. 21, fn.14, based on such review of the record, the court finds the matter may be completed without prejudice to the parties. Based upon such finding and the waiver by the parties of the right to have the matter decided by the original trial judge, the court hereby GRANTS the motion to appoint successor judge. The court shall render a decision on the termination of parental rights petition and the pending motion to review permanency plan based on this court's findings of fact and conclusions of law.
It is SO ORDERED.