In re M. S.

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In re M. S.

IN RE M. S.*
(AC 47122)
Alvord, Moll and Seeley, Js.

Syllabus

The minor child, M, appealed to this court from the judgment of the trial
court sustaining an ex parte order granting temporary custody of M to
the petitioner, the Commissioner of Children and Families, and adjudi-
cating M neglected pursuant to statute (§ 46b-129). The respondent
mother, S, had a long-standing issue with alcohol abuse and would
engage in binge drinking outside the home. During these binges, S would
leave M in the care of her partner, H. Although H has been taking care
of M for many years and was a father figure to her, he was also a
registered sex offender, was on the central registry of the Department
of Children and Families for physical abuse of a child and has a history
of intimate partner violence. At the time the ex parte order of temporary
custody was granted, M was in the care of H and S’s whereabouts were
unknown and no one was able to contact her. At the adjudication hearing,
the trial court found, inter alia, that H had no legal authority with respect
to M and no ability to address emergencies or her needs, and it expressed
those same concerns if S were to relapse and leave the home again.
The trial court also found that, given H’s background, he may be an
inappropriate caregiver, could not find him ‘‘suitable and worthy’’ and
thus found an element of predictive neglect based on the caregiver in
whom S had vested M’s care. On appeal, M claimed that the trial court
applied the incorrect legal standard in sustaining the order of temporary
custody, specifically, that the court failed to find that she was in immedi-
ate physical danger because the only allegation by the petitioner concern-
ing an immediate risk of physical danger to M was that she had been
left in the care of someone unfit to care for her. Held that the trial court
applied the correct legal standard in sustaining the order of temporary
custody and in adjudicating M neglected: the trial court accurately set
forth the legal standard in the adjudication hearing’s opening, its findings
regarding S’s issues with alcohol abuse satisfied § 46b-129, and a review
of the entire record provided strong support for this conclusion; more-
over, the court used the phrase ‘‘suitable and worthy’’ when referencing
H only after it had set forth sufficient findings in support of sustaining
the order of temporary custody and thus the court’s use of that phrase

* 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.
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In re M. S.
did not lead to the conclusion that the court had used that standard in
sustaining the order of temporary custody; furthermore, H was not a
party to the action, nor was there any motion filed to vest temporary
custody of M with H and, thus, the potential outcomes of the hearing
were limited to the trial court sustaining the order of temporary custody
or vacating the order of temporary custody and returning M to S.

Argued May 22—officially released July 22, 2024**

Procedural History

Petition by the Commissioner of Children and Fami-
lies to adjudicate the respondents’ minor child
neglected, brought to the Superior Court in the judicial
district of New London, Juvenile Matters at Waterford,
and tried to the court, Hon. John C. Driscoll, judge
trial referee; judgment sustaining an ex parte order of
temporary custody and adjudicating the minor child
neglected, from which the minor child appealed to this
court. Affirmed.

Joshua D. Michtom, senior assistant public defender,
for the appellant (minor child).
Nisa Khan, assistant attorney general, with whom,
on the brief, was William Tong, attorney general, for
the appellee (petitioner).

Opinion

ALVORD, J. This appeal, brought by the minor child,
M. S., arises from the trial court’s judgment sustaining
an ex parte order granting temporary custody of the
child to the petitioner, the Commissioner of Children
and Families, and adjudicating the child neglected. On
appeal, the child challenges only the sustaining of the
order of temporary custody and claims that the court
erred in making that decision without finding that she
was at risk of immediate physical harm. The respondent
** July 22, 2024, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
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In re M. S.

mother, Stephanie S., is not participating in this appeal.1
We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. The respondent’s
involvement with the Department of Children and Fami-
lies (department) began before the order of temporary
custody because of concerns regarding the respon-
dent’s substance use. The department has had prior
involvement with the child and with an older sibling,
who now lives in Ohio. In June, 2023, the department
received a referral from a therapist who was treating
the child’s maternal grandmother (grandmother). The
grandmother had expressed concern to her therapist
because the respondent had disappeared and left the
child, who was eleven years old at the time, with the
respondent’s partner, S, who is a registered sex
offender. The grandmother also reported concern about
the respondent’s alcohol use.
After unsuccessful attempts to contact the respon-
dent, the department called S and made contact with
him through a subsequent text message. S provided an
address where he was staying with the child, and the
department conducted a visit there on July 18, 2023.
Also on that date, the petitioner, pursuant to General
Statutes § 17a-101g, invoked a ninety-six hour hold on
the child and placed the child in the care and custody
of the petitioner. On July 21, 2023, the petitioner filed
a motion for an order of temporary custody, alleging
that the child was ‘‘in immediate physical danger from
surroundings.’’ The order of temporary custody was
granted ex parte by the court, Hoffman, J., that same
day, with the court finding that the child was ‘‘in imme-
diate physical danger from surroundings . . . [a]nd
The respondent mother did not file an appeal or submit a brief in the
1

present appeal. The respondent father did not participate in the proceedings
before the trial court. We, therefore, refer in this opinion to the respondent
mother as the respondent.
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In re M. S.

[a]s a result of said conditions, the child’s . . . safety
[was] endangered and immediate removal from such
surroundings [was] necessary to ensure the child’s . . .
safety and continuation in the home [was] contrary to
the welfare of said child . . . .’’ Also on July 21, 2023,
the petitioner filed a neglect petition. The respondent
did not appear at the preliminary hearing held before
the court, Hon. John C. Driscoll, judge trial referee,
on July 26, 2023. The order of temporary custody was
sustained without prejudice.
On August 29, 2023, the respondent appeared in court
for the first time and entered denials to the allegations
in the neglect petition. The respondent also filed a
motion to vacate the order of temporary custody. On
September 15, 2023, the petitioner filed a motion to
consolidate the trial on the contested order of tempo-
rary custody with the trial on the adjudicatory phase
of the neglect petition, which the court, Hon. John C.
Driscoll, judge trial referee, granted on September 27,
2023, the first day of trial. The respondent and S were
present for the hearing.
At the consolidated trial, the petitioner presented the
testimony of Kaitlyn Grayson, an investigative social
worker with the department; Elizabeth Caviggia, a
social worker supervisor with the department; and Jen-
nifer Manfredi, a social worker with the department.
Both the respondent and the child declined to present
the testimony of any witnesses.
On October 11, 2023, the court adjudicated the child
neglected and sustained the order of temporary cus-
tody. The court found that the whereabouts of the
child’s father was unknown and that he had not been
involved in the child’s life for years. The court found
that, at the time of the granting of the ex parte order
of temporary custody, the respondent’s whereabouts
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In re M. S.

also were unknown. The court noted that the respon-
dent has a long-standing issue with alcohol. Although
the respondent has an agreement with S that she would
not drink in the home, the agreement has not controlled
her alcoholism. The respondent is a binge drinker and
periodically leaves the home and goes off for twenty-
four to forty-eight hours. In June or early July, 2023,
the respondent left the home on an extended absence.
No one, including the child, the grandmother, or S,
knew where the respondent was. She did not answer
text messages or phone calls or otherwise communicate
in any way.
Thus, the court found that, as of the adjudication
date, the child was neglected, in that she had been
abandoned by the respondent; was being denied proper
care and attention, physically, educationally, emotion-
ally or morally; and was being permitted to live under
conditions, circumstances or associations injurious to
her well-being.
The court noted that the respondent had returned by
the time of the hearing and had participated fully in
the hearing. The court found that the respondent had
entered a detoxification program for approximately one
month, had entered an intensive outpatient program,
and was taking steps to address her alcohol use. The
court also expressed its concern that there may be
issues of control and dependency with respect to the
relationship between the respondent and S.
The court found that the child had been left by the
respondent in the care of S, who had been a caregiver
for the child for many years. The court found that S,
both at the time the respondent left and at the time of
the court’s decision, had no legal authority with respect
to the child and no ability to address emergencies or
her needs. The court expressed the same concern if the
respondent were to relapse and leave the home again.
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With respect to S, the court found that he is a regis-
tered sex offender, had been imprisoned following con-
viction of a ‘‘heinous and violent crime,’’2 was listed on
the central registry of the department for physical abuse
of a child, and had had his parental rights as to another
child terminated. Given his background, the court
stated that S may be an inappropriate caregiver, inter-
posed that it could not, at the time of its decision,
find him suitable and worthy, and found an element of
predictive neglect based on the caregiver in whom the
respondent had vested the child’s care. The court also
expressed concern about the appropriateness of text
messages sent by S to the child.3

The court sustained the order of temporary custody
and adjudicated the child neglected. The court did not
enter a disposition, stating that it was ordering psycho-
logical examinations of the child, the respondent, and
S. This appeal, which challenges only the trial court’s
judgment sustaining the order of temporary custody,
followed.

We first set forth some overarching legal principles
and discuss our standard of review. General Statutes
§ 46b-129 ‘‘governs petitions to adjudicate a child
neglected, uncared for, or abused. This court previously
has explained that subsection (b) of § 46b-129 autho-
rizes courts to issue an order ex parte vesting in some
suitable agency or person the child’s or youth’s tempo-
rary care and custody if it appears, on the basis of the
petition and supporting affidavits, that there is reason-
able cause to believe that (1) the child or youth is
2
Caviggia testified that S ‘‘had a significant history of intimate partner
violence’’ and that he had sexually assaulted a woman on two occasions,
which resulted in criminal convictions for which he had been incarcerated.
3
Caviggia testified that S sent the child a text message in which he stated
something to the effect of, ‘‘I woke up this morning and I missed holding
you.’’
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In re M. S.

suffering from serious physical illness or serious physi-
cal injury or is in immediate physical danger from the
child’s or youth’s surroundings, and (2) that as a result
of said conditions, the child’s or youth’s safety is endan-
gered and immediate removal from such surroundings
is necessary to ensure the child’s or youth’s safety
. . . .
‘‘A preliminary hearing on any ex parte custody order
. . . issued by the court shall be held not later than
ten days after the issuance of such order. . . . General
Statutes § 46b-129 (b). Connecticut law is clear that, in
the context of a hearing for an order of temporary
custody pursuant to § 46b-129 (b), a finding of immedi-
ate physical danger is a prerequisite to the court’s entry
of a temporary order vesting custody of a child in one
other than the child’s parents. . . .
‘‘Following the preliminary hearing on an ex parte
order of temporary custody, [u]pon request, or upon
its own motion, the court shall schedule a hearing on
the order for temporary custody . . . to be held not
later than ten days after the date of the preliminary
hearing. General Statutes § 46b-129 (f). The proper stan-
dard of proof in a [contested hearing] on an order of
temporary custody is the normal civil standard of a fair
preponderance of the evidence. . . .
‘‘In an appeal taken from a trial court’s decision to
sustain an ex parte order of temporary custody, the
applicable standard of review depends on the nature of
the claim raised.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) In re Alizabeth L.-
T., 213 Conn. App. 541, 551–52, 278 A.3d 547 (2022).
In the present case, the child is not challenging any
of the factual findings of the court. The child claims
that the court applied the incorrect legal standard in
sustaining the order of temporary custody, which raises
an issue of law over which we exercise plenary review.
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In re Annessa J., 343 Conn. 642, 667, 284 A.3d 562
(2022); see also In re Xavier H., 201 Conn. App. 81, 95,
240 A.3d 1087 (‘‘[t]he consideration of whether the court
applied an incorrect legal test presents a question of
law, which requires our plenary review’’), cert. denied,
335 Conn. 981, 241 A.3d 705 (2020), and cert. denied,
335 Conn. 982, 241 A.3d 705 (2020). Moreover, ‘‘[t]he
interpretation of a trial court’s judgment presents a
question of law over which our review is plenary. . . .
As a general rule, judgments are to be construed in the
same fashion as other written instruments. . . . The
determinative factor is the intention of the court as
gathered from all parts of the judgment. . . . Effect
must be given to that which is clearly implied as well
as to that which is expressed. . . . The judgment
should admit of a consistent construction as a whole.
. . . If there is ambiguity in a court’s memorandum of
decision, we look to the articulations [if any] that the
court provides.4 . . . [W]e are mindful that an opinion
must be read as a whole, without particular portions
read in isolation, to discern the parameters of its hold-
ing. . . . Furthermore, [w]e read an ambiguous trial
court record so as to support, rather than contradict, its
judgment.’’ (Citation omitted; footnote added; internal
quotation marks omitted.) In re Xavier H., supra, 95.
Specifically, the child claims that the court erred in
sustaining the order of temporary custody on the basis
that it improperly failed to find that the child was in
immediate physical danger. She contends that ‘‘the only
allegation by [the petitioner] concerning an immediate
risk of physical danger to [the child] was that she was
left in the care of someone unfit to care for her. . . .
The trial court applied a legally erroneous standard in
analyzing this question, and even under this erroneous
4
Counsel for the child did not seek reargument or an articulation of the
trial court’s decision sustaining the order of temporary custody. See Practice
Book § 66-5.
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In re M. S.

analysis, found that [the petitioner] had not adduced
sufficient evidence to satisfy its burden.’’ (Emphasis
omitted.) We disagree.
We first note that our Supreme Court ‘‘has never
required the talismanic recital of specific words or
phrases if a review of the entire record supports the
conclusion that the trial court properly applied the law.’’
(Internal quotation marks omitted.) In re Annessa J.,
supra, 343 Conn. 677; see also In re Xavier H., supra,
201 Conn. App. 97 (‘‘although the court did not use the
talismanic phrasing of the statute, its framing of the
legal question before it, and its findings, taken as a
whole, nonetheless, satisfy the statute’’). Because the
court in the present case did not recite the immediate
physical danger standard in its oral decision sustaining
the order of temporary custody, we look to the entire
record to determine whether the court properly applied
that standard.
Reading the record as a whole, we conclude that the
court properly applied the relevant legal standard and
that its findings satisfy § 46b-129.5 In its decision, the
court made several findings with respect to the respon-
dent’s alcohol use, which led to her disappearances
from the home. The most recent absence from the home
was extensive in length, and no one knew where she
was, nor was anyone able to contact her. The court
found that, despite the respondent’s having taken some
steps to address her alcohol use, those steps were insuf-
ficient to allow her to return to a full-time caregiving
role.
5
The present case is distinguishable from In re Chronesca D., 126 Conn.
App. 493, 13 A.3d 1106 (2011), on which the child relies. In that case, this
court reversed the judgment of the trial court committing the minor child
to the temporary custody of a cousin of the minor child’s father because
such order was improper given the trial court’s express finding that the
minor child was not in immediate physical danger from her surroundings.
Id., 494–95.
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These findings, which are not challenged on appeal,
were supported by the evidence. Grayson testified that
the respondent has a pending criminal charge of
operating a motor vehicle while under the influence of
alcohol, stemming from a 2020 incident in which she
drove her car into a brick wall while intoxicated. Cavig-
gia testified that the respondent’s alcohol use appeared
to be increasing over the past couple of years. Grayson
testified that the child reported that, although the
respondent previously had disappeared for shorter time
periods, the child and S typically were able to contact
her via text message or telephone. In this most recent
instance, however, Caviggia testified that she was con-
cerned because the respondent, without providing any
information as to her whereabouts, had left the child
for a period of approximately one month with S, who
had no legal authority or ability to make medical deci-
sions with respect to the child. Grayson testified that
the child told her that the child and S had continued
to call the respondent’s phone and leave voicemails,
but that they were not successful in contacting the
respondent during her absence. They knew that her
phone was turned on, but no calls were returned. Gray-
son testified that, when the respondent ultimately was
located and made aware that the child had been
removed from the home, the respondent indicated to
the police that she was not going to return home. Gray-
son testified that, when the respondent spoke to her
on the phone, the respondent presented as under the
influence of alcohol and, rather than offering to return
home to care for the child, stated that she was going
to have her son from Ohio come to Connecticut to take
care of the child.
Manfredi testified that the child was very worried
about the respondent and ‘‘very distressed at [the
respondent] being gone.’’ Manfredi testified that the
child told her that things were better recently because
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In re M. S.

the respondent no longer drinks alcohol in the home
and instead leaves the home to drink, but the child
reported that she previously had cared for the respon-
dent when she was intoxicated and had picked her up
out of the street. The child told Manfredi that she was
worried that the respondent could not quit drinking and
that, although the respondent will try for a while, she
always ends up going back to it.
A review of the entire record provides strong support
for the conclusion that the court properly applied the
law. In opening the hearing, the court accurately noted
the legal standard applicable to sustaining an order of
temporary custody, remarking, in overruling the respon-
dent’s objection to consolidation, that ‘‘[i]t’s been my
standard policy, with respect to consolidation, to say
that if the [order of temporary custody] is sustained,
then a neglect adjudication follows on a per se basis.
I can’t find that the child is in imminent risk of physical
harm and then not find that they were neglected.’’
(Emphasis added.) Later in the hearing, when the child’s
attorney questioned the department social worker as
to why the child’s school had been changed following
her removal from the home, the court asked how that
information would be relevant to the order of temporary
custody, and explained: ‘‘I see it’s irrelevant to the issue
of whether she’s in imminent physical risk unless you’re
suggesting that she’s going to run away unless she’s
returned to’’ her previous school.
The child focuses on S and the observation made in
one portion of the court’s decision as to whether S is
‘‘suitable and worthy,’’ in seeking to demonstrate that
the court applied the wrong legal standard. Specifically,
the child contends that, ‘‘[i]n using this terminology,
the trial court appears to have been alluding to its
power, under [§] 46b-129 (j),6 to vest guardianship of a
6
General Statutes § 46b-129 (j) (2) provides in relevant part: ‘‘Upon finding
and adjudging that any child . . . is uncared for, neglected or abused the
court may . . . (B) vest such child’s . . . legal guardianship . . . with any
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In re M. S.

child in any suitable and worthy person after the child is
adjudicated neglected.’’ (Emphasis in original; footnote
added.) The petitioner responds that the court men-
tioned ‘‘suitable and worthy’’ only after it had set forth
sufficient findings in support of sustaining the order of
temporary custody. We agree with the petitioner that
the court’s use of the phrase ‘‘suitable and worthy’’ does
not lead to the conclusion that the court improperly
used that standard in sustaining the order of temporary
custody.7
We first note that S is not a party in this action,
nor was there any motion filed to vest the order of
temporary custody in S. Thus, the potential outcomes
of the hearing were limited to the court sustaining the
order of temporary custody, with the custody of the
child being vested in the petitioner, or vacating the
order of temporary custody, with the child returning
to the respondent’s care. After setting forth several find-
ings with respect to the respondent’s alcohol use and
inability to serve as a full-time caretaker, the court also
summarized the evidence it had received with respect
to S, with whom the respondent left the child when
she disappeared. The court observed that S had been
convicted of a violent sexual assault, he had his parental
rights with respect to another child terminated, the
other person . . . found to be suitable and worthy of such responsibility
by the court, including, but not limited to, any relative of such child . . .
by blood or marriage . . . .’’
7
Because we reject the child’s argument that the court applied the ‘‘suit-
able and worthy’’ standard, we need not address her argument that the
evidence did not satisfy that standard. The child also requests this court to
hold, ‘‘as a matter of substantive due process, [that] the mere allegation
that a child was left in the care of an otherwise competent adult who lacked
legal authority to consent to medical care, without specific factual allegations
tending to show risk factors unique to that child, cannot constitute a basis
for sustaining an order of temporary custody.’’ Because the fact that the
child was left with a caretaker was not the sole basis for the court’s findings
underlying its sustaining of the order of temporary custody, we reject the
child’s request.
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In re M. S.

department previously had substantiated allegations of
physical abuse by him against a stepson, and he had
sent potentially concerning text messages to the child
in the present case. The court remarked: ‘‘I can’t at this
point find him suitable and worthy. I’m not saying he’s
unsuitable or unworthy. I’m saying I cannot find him
to be suitable and worthy. So, based on a predictive
neglect finding as to the caregiver whom mother had
been vesting care, the court finds that there’s an element
of predictive neglect there, that he may be an inappro-
priate caregiver given his background.’’
We are not convinced that these remarks demon-
strate that the trial court used the legal standard applica-
ble to the vesting of guardianship, as set forth in § 46b-
129, in rendering its decision sustaining the order of
temporary custody. As noted previously, the court accu-
rately set forth the relevant legal standard on more than
one occasion and made appropriate findings in support
of that legal standard. See In re Xavier H., supra, 201
Conn. App. 100 (where court made sufficient factual
findings to meet statutory standard and correctly set
forth legal standard elsewhere in its memorandum of
decision, imprecision in conclusory statement did not
reflect application of incorrect legal standard); see also
In re Averiella P., 146 Conn. App. 800, 805, 81 A.3d 272
(2013) (although court used phrase ‘‘potential risk of
harm’’ in ruling on motion to transfer guardianship,
it did not use it as sole basis for finding transfer of
guardianship was in child’s best interest). Having con-
sidered the challenged portion of the court’s decision
within the context of the court’s overall analysis; see
In re James O., 322 Conn. 636, 654, 142 A.3d 1147 (2016);
we conclude that the court, in sustaining the order of
temporary custody, did not apply an incorrect legal
standard.
The judgment is affirmed.
In this opinion the other judges concurred.