In re P. T.-W.

309 A.3d 394

223 Conn.App. 571

IN RE P. T.-W.^*

(AC 45944)

Appellate Court of Connecticut.

Argued November 9, 2023

Officially Released January 31, 2024^**

Michael W., self-represented, the appellant (respondent father).

Suarez, Clark and Seeley, Js.

SEELEY, J.

₅₇₃The 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 procured 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 incarceration in the state of Washington and was not given an opportunity to participate remotely, such as by telephone. We agree and reverse the judgment.

The following facts and procedural history are relevant to this appeal. Melissa T. became pregnant after ₅₇₄she and the respondent commenced an intimate relationship 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 behavior, that caused her to be concerned about the stability of his mental health and, ultimately, to end the relationship.

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 threatening …."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 contentious battle for custody of P. Two days after Melissa T. filed her application for relief from abuse, the respondent 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 visitation of P that were resolved by a second stipulation dated July 31, 2017, which was approved by the court ₅₇₅and provided for "a ‘rotating 2-2-3 parental responsibility 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 competing 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 respondent. 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 agreement. 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 respondent, 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 ₅₇₆November 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, ₅₇₇execution 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

₅₇₈On 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 omission, 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 respondent has failed to achieve such degree of personal rehabilitation 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 ₅₇₉convincing evidence, that the respondent had voluntarily 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 committed fraud by failing to provide vital information to the court. Specifically, he alleged that information pertaining 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 information, 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. Subsequently, on September 2, 2022, Melissa T. filed a motion to dismiss the respondent’s motion to open the judgment 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...