In re P. T.-W.

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IN RE P. T.-W.*
(AC 45944)
Suarez, Clark and Seeley, Js.

Syllabus

The respondent father filed a motion to open the judgment rendered by the
trial court terminating his parental rights with respect to his minor
daughter, P. In his motion, the father alleged that, although he had
consented to the termination of his parental rights, he had recently
discovered information that indicated that the mother of P and the
mother’s attorney had committed fraud by failing to provide certain
vital information to the court and, that if he had known that information,
he would not have voluntarily given up his parental rights. The mother
filed a motion to dismiss the father’s motion to open. Eight days prior
to the scheduled hearing on the father’s motion, the father’s parent
called the court clerk’s office and stated that the father, who was incar-
cerated in the state of Washington, would not be able to make it to
court. The record contained notes from a clerk indicating that a call
was placed to the correctional facility in Washington and that the clerk
was told that, although the prison had access to Microsoft Teams, the
collaborative meeting software used by the Connecticut Judicial Branch
for remote hearings, it was only used for internal purposes, and that
the prison ‘‘[did] not do virtual for inmates.’’ The scheduled hearing on
the father’s motion to open took place even though the father was not
present. The court thereafter dismissed the father’s motion. The father
appealed to this court, claiming, inter alia, that the court erred in dismiss-
ing his motion to open by proceeding with the hearing in his absence
and without giving him a chance to participate remotely. Held that
the trial court violated the respondent father’s due process rights in
conducting the hearing on his motion to open without giving him a
meaningful opportunity to be heard on his motion: it was undisputed
that the father was not present and was not afforded an opportunity
to participate remotely, either by telephone or a video conferencing
platform, at the hearing on his motion to open the judgment terminating
his parental rights, and there was nothing in the transcript of that hearing
that indicated that steps had been taken to provide the father with a
meaningful opportunity to participate and be heard at the hearing, as
the transcript simply reflected that counsel for the mother told the court
that the father was incarcerated in the state of Washington; moreover,
even though the court’s written order dismissing the father’s motion
stated that the clerk’s office had previously attempted to have the father
participate remotely from the correctional facility but that the facility
indicated that they used a platform other than Microsoft Teams, that
was not the only means by which the father could have participated,
as he could have participated via telephone or the hearing could have
been rescheduled to a future date at which the father’s participation
could be secured; accordingly, the case was remanded for a new hearing
on the motion to open, at which the father was to be provided with a
meaningful opportunity to be heard on the motion.
Argued November 9, 2023—officially released January 31, 2024**

Procedural History

Petition to terminate the respondent father’s parental
rights with respect to his minor child, brought to the
Probate Court in the district of Stamford and trans-
ferred to the Superior Court in the judicial district of
Stamford-Norwalk, Juvenile Matters, where the respon-
dent father consented to the termination of his parental
rights; thereafter, the case was tried to the court, Maro-
nich, J.; judgment terminating the respondent father’s
parental rights; subsequently, the court, E. Richards,
J., dismissed the respondent father’s motion to open
the judgment, and the respondent father appealed to
this court. Reversed; further proceedings.
Michael W., self-represented, the appellant (respon-
dent father).
Opinion

SEELEY, J. The self-represented respondent father,1
Michael W., appeals from the judgment of the trial court
dismissing his motion to open a judgment previously
rendered by the court terminating his parental rights
with respect to his minor daughter, P. T.-W. (P). In
his motion to open, the respondent alleged that the
judgment terminating his parental rights had been pro-
cured by fraud. On appeal, the respondent claims, inter
alia, that the court improperly dismissed his motion to
open the judgment terminating his parental rights at a
hearing at which he was not present due to his incarcer-
ation in the state of Washington and was not given an
opportunity to participate remotely, such as by tele-
phone. We agree and reverse the judgment.
The following facts and procedural history are rele-
vant to this appeal. Melissa T. became pregnant after
she and the respondent commenced an intimate rela-
tionship in October, 2014. The respondent and Melissa
T. moved to Connecticut in January, 2015, and P was
born in July, 2015. Melissa T. and the respondent were
never married but resided together until April, 2017.
When they resided together, Melissa T. observed certain
conduct by the respondent, including controlling behav-
ior, that caused her to be concerned about the stability
of his mental health and, ultimately, to end the relation-
ship.
On April 10, 2017, Melissa T. filed an application for
relief from abuse seeking a restraining order against
the respondent, in which she alleged that she had ‘‘been
subjected to a continuous threat of present physical
pain or physical injury, stalking or a pattern of threaten-
ing . . . .’’2 That same day, the court issued an ex parte
restraining order, which remained in effect until the
matter was heard at a hearing on April 21, 2017, at
which the court determined that the evidence was
legally insufficient to demonstrate that Melissa T. had
met her burden of proof to justify the issuance of a
restraining order.
Thereafter, the parties became involved in a conten-
tious battle for custody of P. Two days after Melissa T.
filed her application for relief from abuse, the respon-
dent petitioned the court for sole legal and physical
custody of P. The parties thereafter stipulated to joint
legal and shared physical custody. They subsequently
filed numerous motions pertaining to custody and visi-
tation of P that were resolved by a second stipulation
dated July 31, 2017, which was approved by the court
and provided for ‘‘a ‘rotating 2-2-3 parental responsibil-
ity plan’ but made no change to the prior agreement of
joint legal custody.’’ After Melissa T. filed an emergency
motion for custody in August, 2017, the court granted
the motion, awarded sole legal and physical custody
of P to Melissa T., and ordered that the respondent’s
parenting time with P be supervised. Following compet-
ing motions to modify custody, the parties entered into
another stipulation, which was submitted for court
approval on March 19, 2018. That stipulation granted
decision-making authority to Melissa T. and changed
the custody arrangement from shared parenting and
visitation time to primary residence with Melissa T.,
with a more limited visitation schedule with the respon-
dent. Melissa T. filed a second emergency motion for
custody in September, 2018, claiming that ‘‘ ‘there [was]
an immediate and present physical and psychological
danger’ ’’ to P, and the parties entered into an agree-
ment. The parties continued to file numerous motions
relating to the custody of P, most of which were
resolved following a trial that began in January, 2019,
and concluded in May, 2019, that resulted in the court
issuing a lengthy memorandum of decision in which it
made numerous orders, including awarding sole legal
and physical custody of P to Melissa T., suspending
visitation with the respondent and ordering the respon-
dent, inter alia, to participate in a program of intensive
psychotherapy.
In 2018, Melissa T. sought and obtained a restraining
order against the respondent that was extended to
2019.3 The respondent violated that order when, on
November 24, 2019, he attempted to break into Melissa
T.’s residence while she and P were in that residence.4
As a result, the respondent was charged with criminal
violation of a restraining order, burglary in the first
degree, and attempt to commit risk of injury to a child.
At a hearing before the court on October 28, 2020,
the respondent entered a guilty plea to the charges
of burglary in the first degree, criminal violation of a
restraining order, and attempt to commit risk of injury
to a child, with a proposed total effective sentence of
ten years, execution suspended after a minimum period
of one year and a maximum period of three years, with
that effective term being determined by the court at
sentencing, and five years of probation. As an additional
condition of the plea, the prosecutor asked the court
to issue three full no contact protective orders for the
protection of Melissa T., her husband, and P. At that
hearing, the prosecutor specifically stated that the
period of those protective orders would be ‘‘forty years
for [Melissa T.] and her husband and until the child’s
eighteenth birthday for [P].’’ The respondent’s counsel
indicated that the respondent, who was present at that
hearing, ‘‘[was] in agreement with those conditions.’’
At the respondent’s sentencing hearing on December
30, 2020, at which the respondent was present, the court
sentenced the respondent, in accordance with the plea
agreement, to a total effective sentence of ten years,
execution suspended after one year, with five years of
probation. The court also specifically recounted the
conditions of its standing criminal protective orders
and their duration, stating that the orders pertaining to
Melissa T. and her husband would expire on December
30, 2060, and that the one pertaining to P would expire
in July, 2033, on her eighteenth birthday. The court also
made clear to the respondent that, with respect to those
protective orders, he has to ‘‘stay away from the home
of the protected person, wherever that person may
reside,’’ ‘‘have no form of contact with the protected
person, including any written, electronic or telephonic
contact, and . . . not contact the protected person’s
home or place of others with whom the contact will
be likely to cause annoyance or alarm to the protected
person or persons.’’ The respondent also was ordered
to stay 100 yards away from all three protected persons.
Those same conditions apply to all three protective
orders. At that hearing, Melissa T.’s attorney was asked
if he had anything to say, to which he remarked that
he wanted the respondent to know that the criminal
protective orders that were being put in place at that
hearing as part of the criminal disposition supersede
the restraining order that previously had been in place.5
On March 5, 2021, Melissa T. filed a petition in the
Probate Court seeking to terminate the respondent’s
parental rights with respect to P on the grounds that
(1) P had been abandoned by the respondent, (2) P had
been denied the care, guidance or control necessary
for her physical, educational, moral or emotional well-
being by reason of acts or parental commission or omis-
sion, namely, the respondent had pleaded guilty to
attempting to commit risk of injury to a child, for which
a criminal protective order was issued that precluded
the respondent from having any contact with P for the
next fourteen years, (3) there was no ongoing parent-
child relationship between P and the respondent, and
(4) P had been found in a prior proceeding by the
Probate Court to have been neglected and the respon-
dent has failed to achieve such degree of personal reha-
bilitation as would encourage the belief that, within a
reasonable time and considering the age and needs of
P, the respondent could assume a responsible position
in P’s life. The matter was subsequently transferred to
the juvenile division of the Superior Court.
On August 30, 2021, the respondent executed and
signed an affidavit consenting to the termination of his
parental rights. Thereafter, on October 21, 2021, the
court rendered judgment terminating the respondent’s
parental rights pursuant to its findings, by clear and
convincing evidence, that the respondent had volunta-
rily consented to the termination of his parental rights
and that such termination was in P’s best interest.
On June 10, 2022, the respondent filed a motion to
open the judgment terminating his parental rights. In
that motion, the respondent alleged, inter alia, that, in
the preliminary meetings leading to the termination of
his parental rights, Melissa T. and her attorney commit-
ted fraud by failing to provide vital information to the
court. Specifically, he alleged that information per-
taining to Melissa T.’s health was ‘‘hidden from the
court,’’ that he had just discovered the ‘‘horrible news’’
a few weeks prior, and that if he had known such infor-
mation, he would not have voluntarily given up his
parental rights and, instead, would have proceeded with
a hearing on the termination petition.
A hearing on the respondent’s motion to open was
initially scheduled for July 5, 2022, but that date was
continued to September 6, 2022, at the request of
Melissa T.’s attorney, who had a conflict. On July 25,
2022, P was adopted by Melissa T.’s husband. Subse-
quently, on September 2, 2022, Melissa T. filed a motion
to dismiss the respondent’s motion to open the judg-
ment terminating his parental rights. In her motion to
dismiss, Melissa T. argued that the respondent’s motion
to open was not timely filed and, thus, was barred by
the statute of limitations. She also asserted that a final
judgment of stepparent adoption had been rendered
with respect to her husband, who is now P’s sole father.
In her motion, Melissa T. also noted that, on December
30, 2020, the respondent had pleaded guilty to criminal
violation of a protective order, burglary in the first
degree, and attempt to commit risk of injury to a child,
and was sentenced to ten years of incarceration, execu-
tion suspended after one year, followed by five years of
probation. Melissa T. further noted that ‘‘[a] protective
order was issued against [the respondent] preventing
him from having any contact with [P] until she [is]
eighteen years old.’’
On September 6, 2022, the respondent sought a con-
tinuance of the September hearing date on his motion
to open on the ground that his attorney ‘‘ ‘quit’ ’’ and
he needed more time to prepare for the hearing as a
self-represented party. A continuance was granted, and
a hearing was set for October 6, 2022. On September
28, 2022, the respondent’s father called the court clerk’s
office and stated that the respondent, who was incarcer-
ated in the state of Washington at the time, would not
be able to make it to court for the October 6, 2022
hearing. The record contains notes from a clerk dated
September 29, 2022, indicating that a call was placed
to the correctional facility in Washington and that the
clerk was told that, ‘‘while the prison had access to
[Microsoft Teams],6 it was only used for internal pur-
poses,’’ and that the prison ‘‘[does] not do virtual for
inmates.’’ (Footnote added.)
The scheduled hearing on the respondent’s motion
to open took place on October 6, 2022, despite the fact
that the respondent was not present at the hearing due
to his incarceration in Washington. After counsel for
the parties identified themselves at the hearing, the
following colloquy took place between the court and
Frank Bevilaqua, the attorney for Melissa T.:
‘‘The Court: All right. . . . Is the [respondent] here
today or?
‘‘[Attorney Bevilacqua]: . . . I provided [this] [court]
with information. [The respondent] is currently incar-
cerated in Washington state waiting for extradition for
violating . . . the standing protective orders that were
in [place] on file with my client, Melissa T., and her
current husband. So, I don’t know if there’s going to
be a Zoom or not. I gave the—the clerk’s office all of
the information of where . . . [the respondent] is cur-
rently residing. I hate using the term residing but
being held.
‘‘The Court: All right. Anything else? Was it down for
dismissal today or what was the? Okay. All right. So,
do we know where the father is? Has there been any
attempt to contact him in Washington state or has there
been service in that regard, do we know?
***
‘‘The Court: And so, the motion [to open] is by the
[respondent], correct me if I am wrong, he is not here.
‘‘[Attorney Bevilacqua]: Correct. . . .
‘‘The Court: He’s incarcerated in . . . the far west,
Washington state.
‘‘[Attorney Bevilacqua]: Correct.
‘‘The Court: All right.
‘‘[Attorney Bevilacqua]: Based on his violation of the
protective order[s] and terms of his release where the
protective order[s] w[ere] imposed against him in crimi-
nal court by Judge White.
‘‘The Court: Yes.
‘‘[Attorney Bevilacqua]: And as in [Melissa T.],
[Melissa T.’s husband], and . . . [P] [were] the recipi-
ents of the standing protective order[s].
‘‘The Court: The [respondent’s] rights were pre-
viously terminated, is that correct?
‘‘[Attorney Bevilacqua]: Correct, Your Honor. By
this court.
‘‘The Court: All right.
‘‘[Attorney Bevilacqua]: In this jurisdiction. . . .
‘‘The Court: There’s a full permanent protective order
in effect [enjoining] the [respondent] from having con-
tact with the child. Is that correct?
‘‘[Attorney Bevilacqua]: Correct, Your Honor. For the
next nineteen years, seventeen to nineteen years. . . .
‘‘The Court: All right. Anything else?
‘‘[Attorney Bevilacqua]: No, Your Honor.
‘‘The Court: I’m going to dismiss the matter. . . .
Just so the record is clear, there is a full protective
order [enjoining] the respondent . . . from having any
contact with the child . . . . He can’t have contact
with that child by order of Judge White by order of the
Stamford court. In light of those factors, to have any
relitigation of the motion would . . . in my mind, vio-
late the best interest rule of the child . . . .
‘‘So, with that end in mind, while I understand it is
a bit of a stretch to, I don’t want to say bit of a stretch,
but it—I don’t like to have a motion to dismiss without
all the parties present. In view of the fact that the father
filed this motion. The child is in, has been adopted, is
in the custody of another individual. Apparently, the
reason for that, at least part of the reason for that
termination of parental rights and the custodial change,
was the [respondent’s] violence against the child, who
[the respondent] now wishes to have contact with, yield
the fact that there is a full protective order. . . . The
court is going to find that it is in the best interest . . .
of the child to dismiss the . . . [respondent’s motion
to open] at this time.’’
The court thereafter issued a written order, consis-
tent with its oral decision, dismissing the motion to
open. The order stated: ‘‘[The respondent], [whose
parental rights previously were terminated], has filed
a motion to [open] alleging fraud. [The respondent] is
incarcerated in Washington state. There is a permanent
protective order in effect, which was previously ordered
by the Stamford criminal court against the [respondent].
[The respondent] is not present today. [The] clerk’s
office previously attempted to have the [respondent]
participate remotely from jail, but [the] correctional
facility indicated that they use a different platform,
other than [Microsoft] Teams. Since [the respondent] is
not present today, and because a permanent protective
order is in effect against [the respondent], the court
enters a dismissal as to [the respondent’s] motion to
[open].’’ The respondent subsequently filed a timely
appeal challenging the dismissal of his motion to open
and seeking a new hearing thereon.
Thereafter, pursuant to Practice Book § 66-5, the
respondent filed a motion for articulation, seeking to
have the court articulate, inter alia, the legal and factual
basis for its dismissal of his motion to open. In an
articulation dated January 24, 2023, the court set forth
the factual and procedural history of the case and
stated: ‘‘On the basis of the statute of limitations alone,
the [respondent’s] motion to [open] [the] judgment is
time barred. But, in the event that the [respondent]
meets the initial threshold to open [the] judgment, it is
the trial court’s opinion that, on the basis of the pre-
viously mentioned case history, including the [respon-
dent’s] plea to the aforementioned felony charges and
the subsequent adoption of the child on July 25, 2022,
it would be disruptive to and not in the best interest
of the child to [open] the judgment.’’7
On appeal, the respondent claims that the court erred
in dismissing his motion to open by proceeding with
the hearing on the motion in his absence and without
giving him a chance to participate remotely. Specifi-
cally, he claims that he had a right to be heard on his
motion and to participate in the proceeding. He asserts
that the court was aware that he would not be able to
make it to court for the proceeding, as his father had
called the clerk’s office eight days prior to the proceed-
ing and informed the clerk of his incarceration in Wash-
ington. He also notes that the hearing had been resched-
uled previously and that it, again, should have been
rescheduled to enable his participation. We agree with
the respondent.
The following legal principles are relevant to the
respondent’s claim. ‘‘[F]or more than a century the cen-
tral meaning of procedural due process has been clear:
Parties whose rights are to be affected are entitled to
be heard; and in order that they may enjoy that right
they must first be notified. . . . It is equally fundamen-
tal that the right to notice and an opportunity to be
heard must be granted at a meaningful time and in a
meaningful manner. . . . Due process, unlike some
legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances.
. . . Instead, due process is a flexible principle that
calls for such procedural protections as the particular
situation demands. . . . [T]hese principles require that
a [party] have . . . an effective opportunity to defend
by confronting any adverse witnesses and by presenting
his own arguments and evidence orally.’’ (Internal quo-
tation marks omitted.) Anderson v. Commissioner of
Correction, 198 Conn. App. 320, 332, 232 A.3d 1229
(2020). ‘‘It is the settled rule of this jurisdiction, if indeed
it may not be safely called an established principle of
general jurisprudence, that no court will proceed to the
adjudication of a matter involving conflicting rights and
interests, until all persons directly concerned in the
event have been actually or constructively notified of
the pendency of the proceeding, and given reasonable
opportunity to appear and be heard. . . . Hasbrouck
v. Hasbrouck, 195 Conn. 558, 559–60, 489 A.2d 1022
(1985). It is a fundamental premise of due process that
a court cannot adjudicate a matter until the persons
directly concerned have been notified of its pendency
and have been given a reasonable opportunity to be
heard in sufficient time to prepare their positions on the
issues involved.’’ (Internal quotation marks omitted.)
Egan v. Egan, 83 Conn. App. 514, 518, 850 A.2d 251
(2004); see also Davis v. Davis, 200 Conn. App. 180,
190, 238 A.3d 46, cert. denied, 335 Conn. 977, 241 A.3d
130 (2020).
‘‘It is a fundamental tenet of due process of law as
guaranteed by the fourteenth amendment to the United
States constitution and article first, § 10, of the Connect-
icut constitution that persons whose . . . rights will
be affected by a court’s decision are entitled to be heard
at a meaningful time and in a meaningful manner. . . .
Whe[n] a party is not afforded an opportunity to subject
the factual determinations underlying the trial court’s
decision to the crucible of meaningful adversarial test-
ing, an order cannot be sustained.’’ (Internal quotation
marks omitted.) Ill v. Manzo-Ill, 210 Conn. App. 364,
376–77, 270 A.3d 108, cert. denied, 343 Conn. 909, 273
A.3d 696 (2022). ‘‘In exercising its statutory authority
to inquire into the best interests of the child, the court
. . . must . . . exercise that authority in a manner
consistent with the due process requirements of fair
notice and reasonable opportunity to be heard.’’ (Inter-
nal quotation marks omitted.) Petrov v. Gueorguieva,
167 Conn. App. 505, 515, 146 A.3d 26 (2016). ‘‘Whether
a party was deprived of his [or her] due process rights
is a question of law to which appellate courts grant
plenary review.’’ (Internal quotation marks omitted.)
Coleman v. Bembridge, 207 Conn. App. 28, 45, 263 A.3d
403 (2021).
Moreover, ‘‘[i]t is undisputed that [t]he right of a
parent to raise his or her children has been recognized
as a basic constitutional right. Stanley v. Illinois, 405
U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972).
Accordingly, a parent has a right to due process under
the fourteenth amendment to the United States consti-
tution when a state seeks to terminate the relationship
between parent and child. See Lassiter v. Dept. of Social
Services, 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d
640 (1981).’’ (Internal quotation marks omitted.) In re
Egypt E., 322 Conn. 231, 244, 140 A.3d 210 (2016); see
also McDuffee v. McDuffee, 39 Conn. App. 412, 415–16,
664 A.2d 1164 (1995) (‘‘natural parent has a protected
liberty interest in a relationship with [his or] her child
and, therefore, has a constitutional right to be present
and to be heard at hearings affecting that relationship’’).
In the present case, the court held a hearing, without
any participation by the respondent, on his motion seek-
ing to open and to reverse the judgment terminating
his parental rights with respect to P, which clearly impli-
cates his constitutional right to parent his child and the
attendant due process protections afforded to parents.
In In re Aisjaha N., 343 Conn. 709, 726, 275 A.3d
1181 (2022), our Supreme Court noted that ‘‘trial courts
have an obligation to ensure that parties have the ability
to meaningfully participate . . . .’’ In that case, the
court declined the party’s invitation to invoke its ‘‘super-
visory authority to create a rule requiring that a trial
court, before conducting a virtual trial in a child protec-
tion case, ensure that the parties either appear by two-
way videoconferencing technology or waive the right
to do so, after a brief canvass.’’ Id., 726–27. Neverthe-
less, the court took the ‘‘opportunity to emphasize the
importance of ensuring equal access to justice’’ in the
contexts of virtual hearings. Id., 727. Relevant to the
present case, the court stated that, ‘‘[i]n situations in
which parties or witnesses express an inability to partic-
ipate in virtual proceedings, it is imperative that our
courts either provide alternative means of accessing
the technology needed to participate . . . or continue
the proceeding until it can be conducted in person or
until such time as the party or witness has secured the
necessary technology to meaningfully participate in the
proceeding. Courts must also be mindful of ensuring
that parties have equal access to the same technological
means to participate in the virtual trial, such as ensuring
that both parties participate by either video and audio
or audio only.’’ Id., 729–30.
In the present case, it is undisputed that the respon-
dent was not present and was not afforded an opportu-
nity to participate remotely, either by telephone or a
video conferencing platform, at the hearing on his
motion to open the judgment terminating his parental
rights. There is nothing in the transcript of that hearing
indicating that steps were taken to provide the respon-
dent with a meaningful opportunity to participate and
be heard at the hearing. Instead, the transcript simply
reflects that counsel told the court that the respondent
was incarcerated in the state of Washington. Moreover,
even though the court’s written order states that the
‘‘clerk’s office previously attempted to have the [respon-
dent] participate remotely from jail, but [the] correc-
tional facility indicated that they use a different plat-
form, other than [Microsoft] Teams,’’ that is not the
only means by which he could have participated. For
example, in In re Juvenile Appeal (Docket No. 10155),
187 Conn. 431, 434, 446 A.2d 808 (1982), the trial court
denied a request for a continuance in which the respon-
dent father, who was incarcerated in California, sought
a continuance until his expected release from prison
so that he could be physically present at the termination
of his parental rights trial. Our Supreme Court con-
cluded that the father was not denied due process,
especially given the unusual measures taken by the
court to secure the father’s long-distance participation
following its denial of his motion for a continuance.
Id., 435–41. Specifically, on the initial day of hearings,
the state’s principal witness testified and was cross-
examined by the father’s counsel, and a complete tran-
script of that hearing was sent to the father, who was
given time to discuss the witness’ testimony with his
counsel by telephone. Id., 436–37. At the second session,
a speaker was attached to a telephone at the court
in Connecticut and the father testified and was cross-
examined from his California prison. Id., 437. As a result
of these measures, the court determined that the
father’s telephonic testimony adequately protected his
due process rights. Id., 435–41; see also In re Aisjaha
N., supra, 343 Conn. 723 n.6.
In contrast to the procedures followed in cases such
as In re Juvenile Appeal (Docket No. 10155) and In re
Aisjaha N., the record in the present case does not
demonstrate that the respondent was given a meaning-
ful opportunity to be heard at the hearing on his motion
to open.8 See Egan v. Egan, supra, 83 Conn. App. 518–19
(court, which proceeded with hearing on motion to
terminate child support in plaintiff’s absence, denied
plaintiff due process by failing to provide plaintiff with
notice of hearing on motion to terminate child support
and meaningful opportunity to be present and be heard
on motion). If there was a problem with the video con-
ferencing platform used by the correctional facility in
Washington, the respondent could have participated
via telephone; see In re Juvenile Appeal (Docket No.
10155), supra, 187 Conn. 436–37 (father who was incar-
cerated in California participated at termination of
parental rights hearing in Connecticut via telephone);
In re Takie O., 215 Conn. App. 580, 584, 282 A.3d 1279
(on first day of trial on termination of parental rights
petition, respondent father joined proceeding by tele-
phone), cert. denied, 345 Conn. 922, 284 A.3d 982 (2022);
or the hearing could have been rescheduled to a future
date at which the respondent’s participation could be
secured. See In re Aisjaha N., supra, 343 Conn. 729–30.
Accordingly, because the hearing was conducted in vio-
lation of the respondent’s due process rights, the court’s
dismissal of his motion to open cannot stand. For that
reason, the case must be remanded for a new hearing
on the motion to open,9 at which the respondent must
be given a meaningful opportunity to be heard on the
motion.10
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the court.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that party’s identity may be ascertained.
** January 31, 2024, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The minor child’s mother, Melissa T., filed a petition in the Probate Court
seeking to terminate the respondent father’s parental rights with respect to
their minor child. Thereafter, the matter was transferred to the Superior
Court. The respondent father subsequently consented to the termination
of his parental rights, and the court rendered judgment terminating his
parental rights.
Melissa T. did not file a brief and is not otherwise involved in this appeal
and, as a result, this court issued an order on September 6, 2023, stating
that the appeal will ‘‘be considered on the basis of the [respondent’s] brief
and, if applicable, the appendix, the record, as defined by Practice Book
[§] 60-4, and oral argument . . . .’’ Furthermore, the attorney for the minor
child, who had anticipated adopting the position of Melissa T. in this matter
but could not do so when no appellee brief was filed, filed a letter dated
October 19, 2023, stating that it is the minor child’s position that the court
properly dismissed the respondent’s motion to open and that, if the respon-
dent were to prevail, it would ‘‘cause direct harm to the child’s wishes and
best interests.’’
2
In her affidavit in support of her application, Melissa T. alleged, inter
alia, that the respondent had exhibited erratic, manipulative, and hostile
behavior toward her, which made her fear for her safety, that the respondent
had been taking her prescription pain medications for recreational use,
and that one night his behavior escalated when he restrained her to grab
her phone.
3
Specifically, in her affidavit in support of her 2018 application for relief
from abuse, Melissa T. alleged that she was in ‘‘imminent fear for [her]
physical safety and [her] daughter’s well-being caused by behavior and
communication of [the respondent].’’ She further alleged that the respon-
dent’s actions were ‘‘abusive, angry, full of hatred and escalating in both
rage and frequency,’’ and that he had been engaging in a pattern of stalking.
On September 26, 2018, the court, Heller, J., issued a full, no contact
restraining order against the respondent as to Melissa T. and P. On October
16, 2018, the court extended the order for one year with respect to Melissa
T. but lifted it as to P.
4
Specifically, at the respondent’s plea hearing, the state asserted that,
‘‘[a]t approximately 2:04 and 2:13 in the morning, the [respondent] illegally
entered a dwelling unit at [a particular address where Melissa T. resided]
without consent after sunset at night and attempted to make entry into
[Melissa T.’s] unit. Inside the unit was [Melissa T.’s] minor child. The defen-
dant at the time had made a number of statements indicating his intent to
take custody of the child to quote, unquote, rescue her from [Melissa T.].
It is the state’s allegation that that is what he was trying to accomplish on
the night in question.’’
5
In his appellate brief and at oral argument before this court, the respon-
dent challenges the existence of the condition of the protective order pre-
cluding him from having any contact with P until she reaches eighteen years
of age that was issued by the court at the time of sentencing. For example,
at oral argument before this court he stated that it is ‘‘not true’’ that he
cannot talk to his daughter until she is eighteen. In his appellate brief, he
further asserts: ‘‘One of the most important false statements in the motion
to dismiss came with an exhibit attached. The information presented to
the court stated, ‘a protective order was issued against [the respondent]
preventing him from having any contact with the minor child until age
eighteen years old.’ This is an untrue fact.’’ We disagree. We have carefully
reviewed the transcripts of the respondent’s plea and sentencing hearings
in the criminal proceeding, at which the court clearly and explicitly stated
the terms of the standing criminal protective order related to P. Under those
terms, the protective order remains in place until P reaches eighteen years
old, and the respondent is ‘‘to have no form of contact with the protected
person, including any written, electronic or telephonic contact . . . .’’ The
respondent bases his assertion on a clerk’s notation on a criminal docket
sheet, dated the same day as the sentencing hearing, stating that the respon-
dent is to have no contact with Melissa T. or P ‘‘other than through [M]y
[F]amily [W]izard.’’ The clerk’s note, however, was not signed by the judge
and contains a scrivener’s error. See RCN Capital, LLC v. Sunford Proper-
ties & Development, LLC, 196 Conn. App. 823, 835 and n.6, 231 A.3d 201
(2020). The actual orders of protection signed by the judge include the
condition that the respondent have no contact with the protected persons
‘‘in any manner, including by written, electronic or telephonic contact,’’
and make no reference to contact through ‘‘[M]y [F]amily [W]izard,’’ which
clearly would contradict the no contact order imposed by the court. (Empha-
sis added.)
6
Microsoft Teams is ‘‘collaborative meeting [computer software] with
video, audio, and screen sharing features.’’ Connecticut Judicial Branch,
Connecticut Guide to Remote Hearings for Attorneys and Self-Represented
Parties (January 17, 2024), p. 5, available at https://jud.ct.gov/HomePDFs/
ConnecticutGuideRemoteHearings.pdf (last visited January 31, 2024).
7
On April 5, 2023, the respondent filed a motion for review of the trial
court’s articulation. On April 26, 2023, this court granted the motion for
review but denied the relief requested therein.
8
The respondent does not claim on appeal that he lacked adequate notice
of the hearing.
9
We note that the record is ambiguous as to whether the hearing on
October 6, 2022, also concerned Melissa T.’s motion to dismiss. The summons
ordering Melissa T. to appear on October 6, 2022, indicates that the scheduled
hearing pertained to the respondent’s motion to open, and the record does
not contain any notice for a hearing on Melissa T.’s motion to dismiss. The
court’s written order containing its judgment of October 6, 2022, however,
indicates that the order pertains to both the motion to dismiss and the
motion to open, and judgment was rendered dismissing the respondent’s
motion to open. Moreover, the transcript of the hearing of October 6, 2022,
does little to clarify this issue, as the court did not state clearly what motion
or motions were before it, and it referenced both the motion to dismiss
and the motion to open. Nevertheless, regardless of whether the hearing
concerned the motion to dismiss in addition to the motion to open, we have
determined that the October 6 hearing was improper in that it took place
in violation of the respondent’s due process rights; accordingly, the judgment
rendered at that hearing dismissing the respondent’s motion to open cannot
stand. We remand for a new hearing on the motion to open only, as requested
by the respondent in his appellate brief. On remand, however, Melissa T.
is free to renew her motion to dismiss or to file a new one and seek a
hearing thereon, should she choose to do so.
10
In light of our determination that a new hearing on the motion to open
is necessary, we need not address the respondent’s claim that the court
improperly based its decision dismissing his motion to open on hearsay and
otherwise inadmissible testimony. Moreover, the respondent, in his appellate
brief, makes a number of arguments that relate to the substance and merits
of his motion to open. For example, he discusses the circumstances of his
consent to the termination of his parental rights, first disputing that he ever
consented and next arguing that he did so under duress. He also argues in
his appellate brief that the court-appointed attorney who represented him
during the termination of parental rights proceeding did not act in the best
interests of the respondent or P, and that the court erred in determining
that his motion to open was time barred because it was filed beyond the
four month period in which motions to open must be filed. See General
Statutes § 52-212a; Practice Book § 17-4. In light of our determination that
it was improper for the court to proceed with the hearing on his motion to
open without providing the respondent with a meaningful opportunity to
be heard at the hearing, we need not address these arguments, as the merits
of the motion to open will be litigated at a new hearing on the motion. Our
decision, therefore, in no way reflects an opinion by this court concerning
the merits of the motion to open. We simply hold that the court’s judgment
issued after the hearing held on October 6, 2022, must be reversed because
the respondent had a right to be heard on his motion.