State v. Lori T.

345 Conn. 44

282 A.3d 1233

STATE of Connecticut

v.LORI T.^*

SC 20520

Supreme Court of Connecticut.

Argued April 25, 2022

Officially Released October 18, 2022

James P. Sexton, assigned counsel, with whom were Megan L. Wade, Hartford, assigned counsel, and, on the brief, John R. Weikart, assigned counsel, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Paul J. Ferencek, state's attorney, and Justina Moore, assistant state's attorney, for the appellee (state).

McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

McDONALD, J.

In this certified appeal, we must examine the meaning of certain language used in General Statutes § 53a-98 (a) (3), a provision that criminalizes custodial interference. Specifically, we must determine whether the actions, or inactions, of the defendant, Lori T., were sufficient to satisfy the "otherwise refuses to return a child" aspect of custodial interference in the second degree. General Statutes § 53a-98 (a) (3). The defendant appeals from the judgment of the Appellate Court, affirming the judgment of conviction, rendered after a jury trial, of three counts of custodial interference in the second degree. See State v. Lori T. , 197 Conn. App. 675, 677, 696, 232 A.3d 13 (2020). On appeal, the defendant claims that the Appellate Court incorrectly concluded that § 53a-98 (a) (3) is not unconstitutionally vague as applied to her and that the evidence was sufficient to support her conviction. See id., at 677, 232 A.3d 13. We affirm the judgment of the Appellate Court.

The Appellate Court's opinion, as supplemented by the record, sets forth the facts and procedural history; see id., at 677–80, 232 A.3d 13 ; which we summarize in relevant part. The defendant's four children, R, L, T and S, were at the defendant's home in Glastonbury for visitation over the Memorial Day weekend in 2015. At the time, the children ranged in age from nine to thirteen years old. The defendant's ex-husband, the children's father, had sole physical and legal custody of the children, and the defendant had visitation rights.¹ R, however, had been staying with the defendant for several months following a physical incident between him and his father, in which the Norwalk Police Department and the Department of Children and Families had been involved.

Over the Memorial Day weekend, the children decided that they did not want to go home with their father at the end of the long weekend. During the weekend, the father received emails from one of the children telling him that she did not want to return to his home and that she wanted to stay at the defendant's home. Pursuant to the custody and visitation order, the father went to the defendant's house to pick up the children on Memorial Day, but, when he arrived, "[the defendant] came out of her house and told [the father] that she wasn't sending the children out. The children didn't want to come out, and she was going to do what the children wanted to do." The father did not call the children or go inside to speak with them; rather, he went directly to the Glastonbury Police Department. Thereafter, Officer Brian Barao of the Glastonbury Police Department went to the defendant's home to conduct a welfare check of the children. After speaking with each child, Barao determined that the children were fine. He did not arrest the defendant, but, instead, he encouraged her to seek legal counsel and to pursue these matters with the family court.

The father returned to his home in Norwalk and contacted the children's school resource officer, Officer Jermaine Nash of the Norwalk Police Department. He informed Nash of the children's refusal to return to his home. A few days later, Nash called the defendant and asked her why the children had not been returned to their father. The defendant told Nash that she "[was] not going to make" the children return with their father. Nash also testified at trial that the defendant said that "the [children] didn't want to come out to [their father]. And then [Nash] made a comment, from [his] understanding, that ... if [the defendant is] the adult, why didn't [she] send them out, and [the defendant] stated that she will not do that. She won't make the children come out to [their father]." Because the children had also been absent from school during this time, Nash told the defendant that she could be in trouble if she did not get the children back into school. The defendant agreed to return the children to school, and Nash agreed not to seek a warrant for her arrest. When the children continued to be absent from school for an additional week, Nash again contacted the defendant, who said that she would not return the children to school. Nash then obtained an arrest warrant on one charge of custodial interference in the second degree, and he contacted the Department of Children and Families.

Thereafter, on June 2, 2015, Nash and Officer David Hoover of the Glastonbury Police Department went to the defendant's home to execute the arrest warrant, and the defendant was taken into custody. In addition to the defendant, the defendant's aunt, the father, the four children, and the defendant's son from a prior marriage were also at the scene. L testified that Nash threatened her and the other children "by telling [them that], if [they] didn't go back to [their] father, [Nash] would ... pick [them] up and forcibly take [them] outside." T stated that Nash was "yelling" and described him as "kind of harsh ...." After placing the defendant into custody, both Hoover and Nash tried to persuade the children to go with their father but were unsuccessful. As a result, Hoover called the Department of Children and Families, explained that he was "having a problem [with the] placement of the children," and arranged a meeting for that day at its Manchester office. Hoover then drove the children to the Manchester office. After the children continued to refuse to go with their father, the Department of Children and Families issued a ninety-six hour hold, and the defendant's aunt was granted temporary custody of the children, who were later placed by the department with their maternal grandmother, with whom they resided for several months, until they reunited with their father.

The state's long form information dated July 5, 2016, charged the defendant with four counts of custodial interference in the second degree, one count for each child. Prior to jury selection, the state dropped the charge as to R, the child who had been staying with the defendant for several months, and proceeded to trial on the three remaining counts. In its operative long form information, the state charged the defendant in count one, in relevant part: "The [s]tate of Connecticut accuses [the defendant] of [c]ustodial [i]nterference in the [s]econd [d]egree and charges that, [in] the city of Glastonbury, on or about May 25, 2015 [Memorial Day], at approximately 7:30 [p.m.] ... the ... [defendant] did ... hold and keep for a protracted period and otherwise refused to return a child, to wit: [L], who was less than sixteen years old, to such child's lawful custodian, to wit: [the father] ... after a request by such custodian for the return of such child, knowing that she had no legal right to do so, in violation of ... § 53a-98 (a) (3)." The remaining counts contained similar allegations regarding T and S. At trial, the state's theory of the case focused on the defendant's alleged refusal to return the children to their father. At the conclusion of trial, the jury found the defendant guilty on all three counts. The trial court sentenced the defendant to a total effective term of three years of imprisonment, execution suspended after ninety days, three years of probation, and a $1500 fine.

From the trial court's judgment of conviction, the defendant appealed to the Appellate Court. The defendant argued that § 53a-98 (a) (3) is unconstitutionally vague in its application to her and that there was insufficient evidence to support her conviction of three counts of custodial interference in the second degree. See State v. Lori T. , supra, 197 Conn. App. at 677, 232 A.3d 13. The Appellate Court rejected both claims and affirmed the judgment of conviction. See id., at 677, 696, 232 A.3d 13. With respect to the vagueness claim, the Appellate Court concluded that "the defendant's conduct falls within the core meaning of § 53a-98 (a) (3) and that the language of the statute provided clear notice to the defendant that ‘refuses to return’ encompassed the behavior of a person who either affirmatively declines to return a child to his or her lawful custodian or declines to take any affirmative steps to return a child to the lawful custodian upon that custodian's request." Id., at 687, 232 A.3d 13. As to the insufficiency of the evidence claim, the Appellate Court explained that "both [the father] and Nash testified that the defendant stated to them that she would not make the children go with [their father] and that she was going to do what the children wanted. The defendant similarly testified that she was ... support[ing] the children's decision and was not ... mak[ing] the decision for them. Clearly, such statements indicate that the defendant had the ability to take some action to return the children to [their father] but that she refused to do so. The defendant, herself, testified that, as a [mother], she had a certain amount of power to convince her children to do things but that she decided to ‘let their voices be heard ....’ " (Emphasis omitted.) Id., at 696, 232 A.3d 13.

Thereafter, the defendant filed a petition for certification to appeal, which we granted, limited to the following two issues: (1) "Did the Appellate Court incorrectly conclude that ... § 53a-98 (a) (3) was not unconstitutionally vague as applied to the defendant?" And (2) "[d]id the Appellate Court incorrectly conclude that the evidence presented was sufficient to prove that...