Opinion
AC 46214
10-11-2023
IN RE GABRIELLA M. et al.
David B. Rozwaski, assigned counsel, for the appellant (respondent father). Evan O'Roark, assistant solicitor general, with whom were Nisa Khan and Albert J. Oneto IV, assistant attorneys general, and, on the brief, William Tong, attorney general, for the appellee (petitioner). Ingrid Swanson, for the minor children.
David B. Rozwaski, assigned counsel, for the appellant (respondent father).
Evan O'Roark, assistant solicitor general, with whom were Nisa Khan and Albert J. Oneto IV, assistant attorneys general, and, on the brief, William Tong, attorney general, for the appellee (petitioner).
Ingrid Swanson, for the minor children.
Alvord, Moll and Lavine, Js.
ALVORD, J. The respondent father, Anthony M., appeals following the judgments of the trial court, rendered in favor of the petitioner, the Commissioner of Children and Families, terminating his parental rights with respect to his minor children, G and A. On appeal, the respondent claims that the court improperly denied a motion for transfer of permanent legal guardianship of the children to their maternal grandmother. The respondent does not raise any claim on appeal challenging the termination of his parental rights. Because we conclude that the respondent is not aggrieved by the decision of the trial court denying the motion for permanent transfer of guardianship, we dismiss the appeal for lack of subject matter jurisdiction. The following facts, which were found by the trial court, and procedural history are relevant to our resolution of this appeal. G and A were born in 2014 and were adjudicated neglected in 2017. An order of protective supervision was in place from December, 2017, to August, 2018. In April, 2019, the Department of Children and Families (department) received anonymous reports of "concerning behavior" regarding Gina N. On April 25, 2019, the petitioner filed motions for orders of temporary custody, which were granted ex parte that same day. Also on April 25, 2019, the petitioner filed neglect petitions. The court sustained the orders of temporary custody, and the children again were adjudicated neglected on July 23, 2019. Also on July 23, 2019, the court committed the children to the custody of the petitioner.
The trial court also rendered judgments terminating the parental rights of the minor children's mother, Gina N., who filed a separate appeal from those judgments. Our decision in that appeal was also released today. See In re Gabriella M. , 221 Conn. App. 827, 303 A.3d 319 (2023). We refer in this opinion to Anthony M. as the respondent.
The attorney for the minor children has filed a statement adopting the appellate brief of the petitioner.
On September 14, 2021, the petitioner filed petitions for the termination of the respondent's parental rights. Beginning on August 31, 2022, the court, Chavey, J. , held a trial on the petitions. The court rendered judgments terminating the respondent's parental rights on November 28, 2022. The court found that the respondent had failed to achieve an appropriate degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of the children, he could assume a responsible position in their lives. In the dispositional phase of the proceedings, the court made findings as to each of the criteria set forth in General Statutes § 17a-112 (k) and concluded that the termination of the respondent's parental rights was in the children's best interests. Accordingly, the court rendered judgments terminating the respondent's parental rights and appointing the petitioner as the children's statutory parent.
In the petitions, the petitioner also sought to terminate the parental rights of the minor children's mother. The judgments terminating the mother's parental rights are not at issue in this appeal. See footnote 1 of this opinion.
By agreement of the parties, the court consolidated the hearing on a motion for transfer of permanent legal guardianship to the children's maternal grandmother, Lorraine N., which was filed by Gina N. on November 16, 2021, with the trial on the termination petitions. At trial, the respondent's counsel represented orally that the respondent joined Gina N.’s motion. In its memorandum of decision, the court denied the motion for transfer of permanent legal guardianship. It first found that an adjudicatory ground to terminate the parental rights of the respondent and Gina N. existed. It next found that the children have lived with their maternal grandmother since 2019 and that she "is a committed, long-term caregiver for the children, who clearly would be a suitable and worthy guardian." The court found that adoption "is clearly possible, as the maternal grandmother wishes to adopt the children, and both [the department] and counsel for the children support termination of parental rights, which would free the children for adoption." The court stated that "[a]doption is also appropriate because the maternal grandmother provides a safe, stable, and loving home for the children ...." Finally, the court rejected the suggestion made by the respondent and Gina N. "that adoption would be inappropriate because the grandmother is seeking to plan and provide financially for the children's future." The court found by clear and convincing evidence that the permanent transfer of guardianship was not in the children's best interests "because it is not as permanent an option as adoption. Termination of parental rights and adoption offer more long-term stability and consistency for the children than would a permanent legal guardianship, which is subject to being reopened and modified when statutory requirements are met. These children require that long-term permanency and stability in light of their significant needs ... and [termination of parental rights] and adoption are best suited to provide it." This appeal followed.
The court also heard motions for visitation filed by the respondent and Gina N. In its memorandum of decision, the court denied the motions.
The respondent's sole claim on appeal is that the court improperly denied the motion for a permanent transfer of guardianship. Specifically, he argues that adoption was not appropriate in the present case and that the court "erred in finding that it was not in the best interests of the minor children when it denied the motion for permanent transfer of guardianship." The petitioner responds, inter alia, that the respondent's "claims challenging the court's denial of the motion for permanent transfer are moot because he fails to challenge the judgment[s] terminating his parental rights." Specifically, the petitioner argues that the respondent "asks this court to remand to the trial court with instructions to grant the permanent transfer or order additional evidentiary hearings." The petitioner contends that the respondent would lack standing on remand because his parental rights remain terminated. Therefore, the petitioner requests that this court dismiss the respondent's appeal.
The petitioner argues that the final judgments terminating the respondent's parental rights, and the respondent's failure to challenge those judgments, preclude him from challenging the court's denial of the motion for permanent transfer of guardianship, which implicates the doctrine of aggrievement. "Aggrievement, in essence, is appellate standing. ... It is axiomatic that aggrievement is a basic requirement of standing, just as standing is a fundamental requirement of jurisdiction. ... There are two general types of aggrievement, namely, classical and statutory; either type will establish standing, and each has its own unique features. ... The test for determining [classical] aggrievement encompasses a well settled twofold determination: first, the party claiming aggrievement must demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest shared by the community as a whole; second, the party claiming aggrievement must establish that this specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Russo v. Thornton , 217 Conn. App. 553, 564, 290 A.3d 387, cert. denied, 346 Conn. 921, 291 A.3d 608 (2023). "Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." (Internal quotation marks omitted.) Healey v. Mantell , 216 Conn. App. 514, 524, 285 A.3d 823 (2022).
In the present case, the respondent did not appeal from the judgments terminating his parental rights. "Termination of parental rights means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent .... General Statutes § 17a-93 (5) ; accord General Statutes § 45a-707 (8). Severance of this legal relationship means that the constitutional right to direct the child's upbringing, as well as the statutory right to visitation, no longer exists .... In effect, the [biological parent] is a legal stranger to the child with no better claim to advance the best interests of the child than any remote stranger." (Citation omitted; internal quotation marks omitted.) In re Riley B. , 342 Conn. 333, 345, 269 A.3d 776 (2022).
The decision challenged by the respondent in the present case is the court's denial of the motion for permanent transfer of guardianship to the maternal grandmother. "Permanent guardianship" is defined as a guardianship "that is intended to endure until the minor reaches the age of majority without termination of the parental rights of the minor's parents ...." General Statutes § 45a-604 (8) ; see also In re Brian P. , 195 Conn. App. 582, 592, 226 A.3d 152 (2020) ("a permanent guardianship is intended to occur without the termination of parental rights"). Accordingly, we must determine whether the respondent is aggrieved by the trial court's denial of the motion for permanent transfer of guardianship, in light of his decision not to challenge the trial court's termination of his parental rights.
General Statutes § 46b-129 (j) (6) provides: "Prior to issuing an order for permanent legal guardianship, the court shall provide notice to each parent that the parent may not file a motion to terminate the permanent legal guardianship, or the court shall indicate on the record why such notice could not be provided, and the court shall find by clear and convincing evidence that the permanent legal guardianship is in the best interests of the child or youth and that the following have been proven by clear and convincing evidence:
"(A) One of the statutory grounds for termination of parental rights exists, as set forth in subsection (j) of section 17a-112, or the parents have voluntarily consented to the establishment of the permanent legal guardianship;
"(B) Adoption of the child or youth is not possible or appropriate;
"(C) (i) If the child or youth is at least twelve years of age, such child or youth consents to the proposed permanent legal guardianship, or (ii) if the child is under twelve years of age, the proposed permanent legal guardian is: (I) A relative, (II) a caregiver, or (III) already serving as the permanent legal guardian of at least one of the child's siblings, if any;
"(D) The child or youth has resided with the proposed permanent legal guardian for at least a year; and
"(E) The proposed permanent legal guardian is (i) a suitable and worthy person, and (ii) committed to remaining the permanent legal guardian and assuming the right and responsibilities for the child or youth until the child or youth attains the age of majority."
Section 46b-129 was amended by No. 21-15, § 117, of the 2021 Public Acts, which made changes to the statute that are not relevant to this appeal. Accordingly, we refer to the current revision of the statute.
The respondent had an interest in the outcome of the motion for permanent transfer of guardianship when he joined that motion at the time of the trial, prior to the termination of his parental rights. This, however, does not end our inquiry. Once the respondent's parental rights had been terminated, and in the absence of any challenge to those final judgments, the respondent no longer had a specific, personal and legal interest that was specially and injuriously affected by the trial court's denial of the motion for permanent transfer of guardianship. In other words, in the context of this appeal, the court's order denying the motion for permanent transfer of guardianship does not interfere with any interest of the respondent, as his parental rights have been terminated. In the absence of a successful challenge to the termination of his parental rights, the respondent is a "legal stranger to the child." (Internal quotation marks omitted.) In re Riley B. , supra, 342 Conn. at 345, 269 A.3d 776. Accordingly, the respondent is not aggrieved by the court's decision. Thus, this court lacks subject matter jurisdiction over the respondent's appeal.
The present appeal is unlike those situations in which a person whose parental rights have been terminated satisfies both the specific interest and specific injury prongs to overcome the aggrievement hurdle to appellate review, such as a denial of posttermination visitation. See, e.g., In re Ava W. , 336 Conn. 545, 557, 248 A.3d 675 (2020).
It is significant that the respondent, in his reply brief, states: "If this court determines that the motion for permanent transfer of guardianship was improperly denied, then the appropriate remedy would be to remand the case back to the trial court with appropriate orders to grant the motion for permanent transfer of guardianship and to obviously vacate the order on the termination of parental rights ." (Emphasis added.) In advocating for that remedy, he belatedly recognizes that the relief he seeks with respect to the permanent transfer of guardianship would necessitate reversal of the judgments terminating his parental rights, which he has not challenged on appeal. This circuitous attempt to reverse the judgments terminating his parental rights is impermissible.
The appeal is dismissed.
In this opinion the other judges concurred.