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Connecticut Child Protection Basic Appellate Practice DETERMINING WHETHER AN APPEAL IS VIABLE

This article provides guidance on determining the viability of an appeal in child protection cases, including the mechanics of appellate review, the rights of the child client, and considerations for filing a brief. It also discusses the criteria for determining justiciability, including mootness and collateral consequences.

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Connecticut Child Protection Basic Appellate Practice DETERMINING WHETHER AN APPEAL IS VIABLE

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  1. Connecticut Child Protection Basic Appellate PracticeDETERMINING WHETHERAN APPEAL IS VIABLE By Sarah Eagan Inez Galloza Editorial support: Paul Chill May 24, 2010

  2. RIGHT TO APPEAL • Purely statutory.* • CGS § 46b-142: • “The Department of Children and Families, or any party at interest aggrieved by any final judgment or order of the court, may appeal to the Appellate Court . . . .” • 20-day deadline to file. • Can be extended to 40 days. (P.B. §35a-21)

  3. Mechanics • Limited Time for Appellate Review: 40 days if Motion for Extension of Time is granted • Inform client of decision immediately • Ascertain client’s position and need for appellate review • Effects of untimely determination

  4. Obtaining Appellate Review Counsel (see CCPA Memo) • Refrain from discussions with the client regarding viability of appeal • Request for Appellate Review Counsel thru CCPA immediately • Motion for Extension of Time • Transcript Order—Non Appeal (See Form) • Application for Appointment of Counsel/Waiver of Fees (See Form) • If Appellate Review Counsel finds no basis for appeal, then client has right to retain other counsel. P.B. § 35a-21

  5. Mechanics of CP appeals • Communicate with Appellate Review Counsel

  6. Mechanics of CP appeal • Trial Counsel pursuing appeal • Consultation with Appellate Counsel • Bench decisions, P.B. § 64-1 • Moot session with CCPA

  7. Mechanics of CP appeals • Expedited Time Frames in Child Protection Cases • Stricter enforceability of Appellate Rules • Motion for Extension of Time • Motion to Dismiss, suasponte • Pending Report

  8. Rights of the Child Client • Children are parties to all proceedings, PB 32a-1 • Children may appeal termination judgment. In re Melody L., 290 Conn. 131, 155-57, 962 A.2d 81, 98-99 (2009). • Parent and child’s rights intertwined. In re Christina M., 280 Conn. 474, 487, 908 A.2d 1073, 1083 (2006).

  9. Rights of Child Client • Consider taking an appeal, as opposed to default position statement • Consider requesting Appellate Review Counsel • PRACTICE TIP: • Children may file a brief within 10 days of the filing of the appellee’s brief. P.B. § 67-13 • Issue: what appellate procedures apply to children when filing a brief in support of the appellant? • Children should file separate appeal.

  10. JUSTICIABILITY • OTC is a final judgment • Must be immediately appealed In re Nashiah C., 87 Conn. App. 210, 216, 866 A.2d 669, 673, cert denied, 273 Conn. 926, 871 A.2d 1031 (2005). • Visitation Orders appealable (family law): “temporary visitation orders are so related to the custody orders as to render them immediately appealable.” Traff v. Bettcher, 34 Conn. App. 421, 424 n.2 (1994).

  11. Justiciability • Underlying or attendant issues may not be appealable. • For example, in a termination of parental rights appeal, the court may not reconsider an underlying finding of neglect that was made in a previous proceeding. In re Stephen M., 109 Conn. App. 644, 953 A.2d 668 (2008). The only way to challenge the neglect finding is to appeal in a timely manner from the original adjudication.

  12. Mootness • Must be practical relief that a court can provide the parties through its determination of the matter. • “an actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." Williams v. Ragaglia, 261 Conn. 219, 225 (2002). • Can be raised at any time. In re Kachainy C., 67 Conn. App. 401 (2001).

  13. Mootness • Neglect adjudication moots OTC claim. SeeIn re Forrest B., 109 Conn. App. 772, 953 A.2d 887 (2008) • Children reaching age 18 mooted parents’ appeal of neglect adjudication. In re Elisabeth H., 45 Conn. App. 508, 512, 696 A.2d 1291, 1293 (1997) • BUT SEE: Court does not lose jurisdiction over 18 year old’s case simply by virtue of youth having reached age of majority. In re Shonna K., 77 Conn. App. 246, 259, 822 A.2d 1009, 1017 (2003)

  14. Mootness • Must appeal alternative grounds for court’s findings. • See In re Jorden R.,293 Conn. 539, 979 A.2d 469 (2009) (vacating the appellate court's holding that the trial court erroneously found that the mother was unable or unwilling to benefit from reunification services where the trial court found a) that the state had made reasonable efforts and b) that the mother was unable and unwilling to benefit from such efforts and the mother only appealed the latter finding.)

  15. Mootnessexceptions • Capable of repetition yet evading review” OR • “Collateral consequences”

  16. Capable of Repetition but Evading Review THREE CRITERIA: • First, the challenged action must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. • Second, reasonable likelihood that the question will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group. • Third, the question must have some public importance. • Loisel v. Rowe, 233 Conn. 370, 382 660 A.2d 323, 330 (1995)

  17. Collateral Consequences • Must be reasonably possible • Must be in the record

  18. Standing • Generally not a problem for parties • Standing of intervening parties. In re Shanaira C., 105 Conn. App. 713, 940 A.2d 817 (2008) (cert pending) (holding that non-relative intervener had standing to appeal court’s ruling revoking child’s commitment.) • Foster parents may not have standing. See, e.g., Terese B. v. Commissioner of Children and Families, 68 Conn. App. 223 (2002) (foster parent lacked standing to pursue administrative appeal of DCF hearing officer decision upholding Department’s removal of foster child from her care, where right to such hearing granted only be reg and not statute)

  19. Preserving Parties Rights and Relationships • Motion to stay execution of that judgment should also be filed as soon as possible in order to protect the parent’s right to visit the child while the appeal is pending. See Practice Book § 61-12. Unless a stay of execution is obtained, the termination judgment extinguishes the parent’s visitation rights. In re Amy H., 56 Conn. App. 55, 61, 742 A.2d 372, 377 (1999). • Child’s independent right to seek visitation post TPR. SeeMichaud v. Wawruck, 209 Conn. 407, 415 (1988); In re Juvenile Appeal (Anonymous), 177 Conn. 648 (1999); C.G.S. 46b-121.

  20. Stays • Whether to grant a stay is within the discretion of the trial court • Other factors include the likely outcome of the appeal, the irreparability of harm to the movant, and the effect of delay upon other parties as well as the general public. Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 458-59(1985) • SeealsoIn re Alexander T., 33 Conn. L. Rptr. 586, 2002 WL 31957474 (Conn. Super. Ct. 2002) (stay denied where success on appeal is only a possibility, not a probability).

  21. Stays • The Practice Book provides that a temporary stay may be ordered suasponte or on written or oral motion until the time to take an appeal has expired or, if an appeal has been filed, until the final determination of the cause. • See Practice Book § 61-12.

  22. CONSTITUTIONALIZING APPELLATE ISSUES • Santosky v. Kramer, 455 U.S. 745 (1982) • Best known for procedural due process holding. • But also has substantive due process aspect: • Court suggests that state would violate due process by terminating parental rights non-consensually “without some showing of [parental] unfitness and for the sole reason that to do so was thought to be in the children's best interest.” (FN 10; internal quotes, citations omitted.) • MLB v. SLJ, 519 U.S. 102 (1996) • TPR works “unique kind of deprivation” compared to all other civil actions.

  23. Recent Issues in child protection appeals 1. Motions for contempt • In re Marcus. 120 Conn. App. 745 (2010) • In re Leah S. 284 Conn. 685 (2007)

  24. Recent Issues • Rights of Incarcerated parent to due process. In re Marcus, 120 Conn. App. 745 (2010);In re Jaime, 120 Conn. App. 712(2010); In re Lukas, 120 Conn. App. 465(2010).

  25. Recent Issues • Permanency/Best Interests Findings. In re Jordan T 296 Conn. 905 (2010)

  26. Recent Issues • Conflicted representation by child’s counsel. In re Lyric H., 114 Conn. App. 582 (2009).

  27. Recent Issues Predictive Neglect • In re Francisco R., 111 Conn. App. 529 (2009) • In re TK, 105 Conn. App. 502 (2009) • In re Anthony A., 112 Conn. App. 643 (2009)

  28. Pending Issues • Evidentiary. Admissibility of children’s statements. In re Tayler F., 111 Conn. App. 28 (2008), cert granted 290 Conn. 901(2009) • Right to evidentiary hearing in revocation/guardianship case. In re Shanaira C., cert granted, 286 Conn. 917 (2008) • Rights of 18 year olds in juvenile court. In re Matthew F. Supreme Court

  29. Recent Issues • Standard of Review in TPR cases: “clearly erroneous” versus “scrupulous review and substantial evidence” SeeIn re Tremaine, 117 Conn. App. 521 2009, In re Melody L., 290 Conn. 131 (2009). • Standard of review when assessing rights of o non-custodial parent.

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