In re Joheli V.

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IN RE JOHELI V.—CONCURRENCE

PRESCOTT, J., concurring. Although I find it a much
closer question, I agree with the majority that the
respondent has appealed from a final judgment1 and
that we, therefore, have jurisdiction over this appeal. I
also fully agree with and join in the majority opinion’s
analysis and resolution of the merits of the respondent’s
claim on appeal.
I write separately in order to explain why I think the
final judgment question presented here is a close one
and to express my concerns regarding developments
in our final judgment jurisprudence, particularly in light
of our Supreme Court’s recent decision in Meribear
Productions, Inc. v. Frank, 328 Conn. 709, 183 A.3d 1164
(2018) (Meribear). Indeed, the decision in Meribear and
its potential application to this case is the most recent
iteration of our long struggle ‘‘for a predictable and
efficacious final judgment standard.’’ E. Prescott, Con-
necticut Appellate Practice & Procedure (5th Ed. 2016)
§ 3-1:1.1, p. 85.
In the present case, the petitioner, the Commissioner
of Children and Families, initiated this proceeding seek-
ing the termination of the parental rights of the respon-
dent, Luis V., and filed Judicial Branch Form JD-JM-40
(Rev. 6-16) (form JD-JM-40). On that form, the petitioner
alleged two statutory grounds for termination of the
respondent’s parental rights. First, she checked box B
1, which alleges that the ‘‘child . . . has been found in
a prior proceeding to have been neglected, abused or
uncared for and the father [has] failed to achieve the
degree of personal rehabilitation that would encourage
the belief that within a reasonable period of time, con-
sidering the age and needs of the child . . . [he] could
assume a responsible position in the life of the child
. . . .’’ Second, the petitioner checked box C, which
alleges that the ‘‘child . . . has been denied, by reason
of an act or acts by the . . . father of commission or
omission; including but not limited to, sexual molesta-
tion or exploitation, severe physical abuse or a pattern
of abuse, the care, guidance or control necessary for
[her] physical, educational, moral or emotional well-
being.’’ Attached to this pleading is a summary of facts,
as required by Practice Book § 33a-1, that alleges, in
separately numbered paragraphs, the facts that specifi-
cally relate to each of the adjudicatory grounds alleged
on the form.
The petitioner was subsequently granted permission
to amend the petition to add an additional adjudicatory
ground on which the petition could be granted. Specifi-
cally, the petitioner alleged, as an alternative, ‘‘ground
D’’2: ‘‘[T]here is no ongoing parent-child relationship
with respect to the father . . . that ordinarily develops
as a result of a parent having met on a continuous, day-
to-day basis, the physical, emotional, moral or educa-
tional need of the child and to allow further time for
the establishment or reestablishment of the parent-child
relationship would be detrimental to the best interest
of the child . . . .’’
At the beginning of the trial, the petitioner withdrew
ground C, that is, the claim that the respondent’s paren-
tal rights should be terminated because of a parental act
of omission or commission. As a result, the petitioner
at trial expended resources litigating and presented evi-
dence on ground B 1 (failure to rehabilitate) and ground
D (no ongoing parent-child relationship).
On November 9, 2017, in a brief oral decision from
the bench, the court granted the petition and terminated
the respondent’s parental rights. In doing so, the court
addressed only the petitioner’s entitlement to relief on
ground B 1, stating, ‘‘I’m just going to go with ground
B because I think it is the simplest and clearest here.’’
The court did not state that the petitioner failed to
establish her entitlement to relief on ground D.
On November 17, 2017, and December 21, 2017, the
respondent filed motions for extension of time to file
an appeal so that he could obtain and review the trial
transcripts and seek the appointment of appellate coun-
sel. These motions for extension of time were granted
and the respondent subsequently was appointed appel-
late counsel by the court. On February 9, 2018, the
respondent’s counsel filed this appeal.
On March 8, 2018, the petitioner filed a motion to
articulate, pursuant to Practice Book § 66-5, requesting,
among other things, that the trial court make specific
findings as to ground D. The petitioner essentially
argued that she had presented witnesses and exhibits
with respect to ground D and that she was entitled to
a decision by the court on that adjudicatory ground.
On March 19, 2018, the court, Hon. Henry S. Cohn,
judge trial referee, issued an articulation stating that
when it rendered its judgment on November 9, 2017, it
‘‘made no adjudicative findings on ‘ground D’ ’’ and that
because ‘‘the court has addressed ground B [1], the
court declined to discuss ground D with its attendant
legal and proof requirements. It continues to adhere
to that position and declines to further articulate on
ground D.’’
With this procedural history in mind, a brief discus-
sion of Meribear is warranted. In that case, our Supreme
Court recognized that, as general rule, ‘‘a judgment that
disposes of only part of a complaint is not final, unless
it disposes of all causes of action against the appellant.’’
Meribear, supra, 328 Conn. 717. The court then sought
to clarify ‘‘the circumstances under which there [is] an
appealable final judgment [if] the trial court’s decision
does not dispose of counts advancing alternative theo-
ries of relief.’’ Id., 711.
In resolving this question, the court distinguished
between two possible scenarios in which a trial court
has not adjudicated all of the theories of recovery
advanced by a plaintiff. The first category of cases
‘‘involves counts alleging claims that are legally incon-
sistent . . . such that establishing the elements of one
precludes liability on the other . . . .’’ Id., 721. ‘‘The
second category involves claims that present alternative
theories of recovery for the same injury, but are not
legally inconsistent.’’ Id., 722.
The court in Meribear then concluded that judgments
in the first category of cases should be treated as final
for purposes of appeal, but decisions in the second
category should not be so treated. The court reasoned
as follows: ‘‘Because of the different effect of the rulings
in these categories, drawing a distinction between them
for purposes of the final judgment rule advances the
policies underlying that rule, namely, the prevention
of piecemeal appeals and the conservation of judicial
resources. Niro v. Niro, 314 Conn. 62, 78, 100 A.3d 801
(2014); see also Canty v. Otto, 304 Conn. 546, 554, 41
A.3d 280 (2012) (citing policy to facilitate the speedy
and orderly disposition of cases at the trial court level).
At trial, the parties have expended resources to fully
litigate all of the claims advanced. A rule that would
allow the trial court not to dispose of counts that pre-
sent alternative, legally consistent theories of recovery
could lead to multiple unnecessary appeals and retrials.
In exceptional circumstances in which the trial court
and the parties agree that litigating only some of the
alternative claims for relief and proceeding to appeal on
those issues before litigating alternative claims would
constitute the greater efficiency, our rules provide a
mechanism to address those circumstances. See Prac-
tice Book § 61-4 (a) . . . .
‘‘In sum, we conclude that when the trial court dis-
poses of one count in the plaintiff’s favor, such a deter-
mination implicitly disposes of legally inconsistent, but
not legally consistent, alternative theories. When a
legally consistent theory of recovery has been litigated
and has not been ruled on, there is no final judgment.’’
(Internal quotation marks omitted.) Meribear, supra,
328 Conn. 723–24.
I turn then to the question of whether the decision
in Meribear compels a conclusion in this termination
of parental rights case that no final judgment yet exists.
Certainly, the sound policy that Meribear seeks to
advance, that is, the prevention of ‘‘multiple unneces-
sary appeals and retrials’’; id., 723; would be promoted
by a conclusion that, in order to render a final judgment,
the trial court here was obligated to decide both of
the adjudicatory grounds upon which the petitioner
proceeded to trial. If this court had concluded on appeal
that the trial court improperly concluded that the peti-
tioner established adjudicatory ground B, then this case
arguably would need to be remanded for a new trial
on adjudicatory ground D, thereby fostering the possi-
bility of multiple appeals, and the attendant delay in
securing permanency for Joheli.
Second, there is no question that, in the broad phrase-
ology of Meribear, the two adjudicatory grounds are
legally consistent, but alternative theories of relief (or
recovery). A conclusion that no ongoing parent-child
relationship exists between the respondent and Joheli
would not be legally inconsistent with a concomitant
conclusion that the respondent had ‘‘failed to achieve
such degree of personal rehabilitation as would encour-
age the belief that, considering the age and needs of
the child, he could assume a responsible position in
her life.’’ Proving either or both adjudicatory grounds
would entitle the petitioner to a judgment terminating
the respondent’s parental rights, provided that the peti-
tioner also established that termination was in Joheli’s
best interest.
Thus, the primary distinction between this case and
Meribear is that the legally consistent but alternative
theories of recovery in Meribear were alleged in sepa-
rate counts of the plaintiff’s complaint, whereas in this
case, the alleged adjudicatory grounds are not con-
tained in separate counts, but instead are alleged on a
judicially authorized form that is expressly designed
for this unique statutory action and is not divided into
counts in the traditional sense.
I agree with the majority that this distinction is signifi-
cant in light of the repeated references in Meribear
to the fact that the legally consistent but alternative
theories of recovery were contained in separate counts
of the plaintiffs’ complaint. Thus, in my view, the
Supreme Court’s broad statement that ‘‘[w]hen a legally
consistent theory of recovery has been litigated and
has not been ruled on, there is no final judgment’’;
Meribear, supra, 328 Conn. 724; should be limited to the
specific procedural context in which the final judgment
question arose in Meribear. Accordingly, Meribear does
not require a conclusion that there is a lack of a final
judgment in this case because the alternative theories
of liability alleged by the petitioner were not pleaded
in separate counts.3
My conclusion that Meribear does not control the
final judgment issue does not mean, however, that its
rule should not be extended to the present case. Cer-
tainly, the policy reasons underlying Meribear are salu-
tary, and arguably warrant application in a termination
of parental rights case where concerns for piecemeal
appeals and the attendant delays are seemingly para-
mount. On the other hand, the trial court’s choice to
refrain from deciding the question of whether the peti-
tioner had established by clear and convincing evidence
that there was no ongoing parent-child relationship
between the respondent and Joheli is, perhaps, not with-
out some justification. In the trial court’s view, the
closeness of the factual and legal questions related to
this adjudicatory ground, and the overall strength of
the petitioner’s case with respect to the adjudicatory
ground it did decide, may well have created in Judge
Cohn’s mind a disinclination to tread where it seemed
unnecessary to go. Reaching adjudicatory ground D
may also have delayed the trial court’s resolution of
adjudicatory ground B 1. Ultimately, in light of Meri-
bear’s lack of vintage, and the uniqueness of the peti-
tioner’s statutory action, I am reluctant to extend
Meribear to this case without further guidance from
our Supreme Court.
I turn then to an explanation regarding why I believe
a final judgment exists in this case, despite a colorable
argument to be made that the petitioner’s claim with
respect to adjudicatory ground D remains pending in
the trial court.4 In my view, the trial court’s repeated
refusal to decide adjudicatory ground D constitutes the
functional denial of that claim.
In a related context, our Supreme Court in Ahneman
v. Ahneman, 243 Conn. 471, 480, 706 A.2d 960 (1998),
recognized that in certain circumstances a ‘‘trial court’s
decision not to consider the defendant’s [postdissolu-
tion] motions was the functional equivalent of a denial
of those motions. Like a formal denial, the effect of the
court’s decision refusing to consider the defendant’s
motions . . . was to foreclose the possibility of relief
from the court on those issues . . . .’’
In the present case, the trial court’s refusal to decide
adjudicatory ground D foreclosed the petitioner from
obtaining a judgment terminating the respondent’s
parental rights on the ground that there is no ongoing
parent-child relationship between the respondent and
Joheli. Accordingly, in combination with the court’s
conclusion that the petitioner was entitled to a judg-
ment terminating the respondent’s parental rights on
the adjudicatory ground of failure to rehabilitate, the
effective denial of adjudicatory ground D means that
there were no further claims left to be adjudicated by
the trial court at the time this appeal was filed. Accord-
ingly, there is a final judgment from which the respon-
dent was entitled to appeal.5
In sum, I concur with the majority that the respondent
has appealed from a final judgment in this case, and,
with respect to the merits of the appeal, I agree that
the judgment of the court should be affirmed for the
reasons stated by the majority.
1
‘‘Because our jurisdiction over appeals, both criminal and civil, is pre-
scribed by statute, we must always determine the threshold question of
whether the appeal is taken from a final judgment before considering the
merits of the claim. . . . Additionally, with the exception of certain statu-
tory rights of appeal not relevant here, our jurisdiction is restricted to appeals
from final judgments.’’ (Citation omitted; internal quotation marks omitted.)
Cheryl Terry Enterprises, Ltd. v. Hartford, 262 Conn. 240, 245, 811 A.2d
1272 (2002).
2
The petitioner appears to have used this nomenclature because it corres-
ponds to box D on form JD-JM-40. See also General Statutes § 17a-112 (j)
(3) (D).
3
If the petitioner had chosen to initiate this action by filing a traditional
complaint and divided the adjudicatory grounds into different counts rather
than using form JD-JM-40, the resolution of the final judgment issue in this
case might be different under the holding in Meribear because there would
be an undecided count that alleges an alternative but not inconsistent theory
of recovery. I point this out only to suggest that the policies that motivated
our Supreme Court in Meribear would militate in favor of a conclusion that
there is not a final judgment regardless of whether the different adjudicatory
grounds had been brought in a single count or in different counts. Neverthe-
less, pursuant to our reading of Meribear, there is a final judgment if the
adjudicatory grounds are brought in a single count but no final judgment
if the adjudicatory grounds are separated into different counts. Such fine
distinctions in our final judgment jurisprudence simply create a trap for
the unwary.
4
Certainly, there is no dispute that the petitioner took steps, without
success, to secure a decision by the trial court on that adjudicatory ground.
5
If my analysis is correct and a final judgment exists in this case, then
the petitioner was under some obligation to take procedural steps necessary
to obtain an adjudication by the trial court of ground D in the event that
the respondent was successful in obtaining a reversal of the judgment termi-
nating his parental rights, which was predicated on adjudicatory ground B.
Arguably, the petitioner could have attempted to file a cross appeal from
the court’s judgment rendered on November 9, 2017. Such an appeal, how-
ever, would itself be on shaky jurisdictional footing because the petitioner
arguably would not be aggrieved by the court’s decision refusing to adjudi-
cate ground D because the court ultimately granted the only relief the
petitioner sought by terminating the respondent’s parental rights.
Under these circumstances, the respondent could have sought to protect
her rights pursuant to Practice Book § 63-4 (a) (1), which provides in relevant
part that an appellee shall file a preliminary statement of issues if the
appellee ‘‘wishes to: (A) present for review alternative grounds upon which
the judgment may be affirmed; (B) present for review adverse rulings or
decisions of the court which should be considered on appeal in the event
the appellant is awarded a new trial; or (C) claim that a new trial rather
than a directed judgment should be ordered if the appellant is successful
on appeal . . . .’’
Presumably, subparagraph (A) of § 63-4 (a) (1) would not apply in these
circumstances because the trial court made no factual findings with respect
to the existence of an ongoing parent-child relationship. In the absence of
such findings, and, because this court is not in the business of finding facts,
we would not have a basis for concluding whether the judgment should be
affirmed because the petition should have been granted on this adjudicatory
ground. Pursuant to subparagraph (B), however, the petitioner could assert
that the effective denial of adjudicatory ground D constituted an adverse
ruling or decision of the court that should be reversed in the event that the
respondent was awarded an new trial, or, pursuant to subparagraph (C),
the petitioner could assert that she was entitled to a new trial on adjudicatory
ground D if this court on appeal had concluded that the respondent was
entitled to a directed judgment on adjudicatory ground B.
My attempt to delineate what I believe the petitioner should have done
to preserve her right to obtain a decision on adjudicatory ground D if
additional proceedings were necessitated by a successful appeal by the
respondent should not be construed as a criticism of the counsel for the
petitioner who, in my view, diligently attempted to navigate the murky
waters of our final judgment jurisprudence. In the end, Meribear adds an
additional layer of complexity and questions regarding the finality of judg-
ments in circumstances where not all theories of recovery or liability are
adjudicated on their merits by a trial court.