ROGERS, C.J.
The primary issue in this certified appeal is whether a noncustodial parent is
The respondent mother, Karin H., and the respondent father, Joseph W., are the parents of Joseph W., Jr., and Daniel W. (children). The petitioner, the commissioner of children and families (commissioner), filed neglect petitions with respect to both children. At the hearing on the petitions, the mother pleaded nolo contendere and the father did not enter a plea. After the trial court found that the children were neglected and committed them to the custody of the commissioner, the father filed a motion to open the adjudication of neglect on the ground that he should have been permitted to enter a plea at the neglect proceeding. The trial court denied the motion to open, but also ruled that the father would be permitted to contest the issue of whether the children were neglected in the proceeding to terminate the respondents' parental rights, provided that he first established that he was a custodial parent.
At the termination proceeding, the trial court found that the father was not a custodial parent and, therefore, could not contest the issue of neglect. The trial court ultimately rendered judgments terminating the respondents' parental rights with respect to both children. The respondents then appealed to the Appellate Court, which reversed the judgments of the trial court on the ground that the trial court improperly had found that the father was not a custodial parent. In re Joseph W., 121 Conn.App. 605, 621-22, 997 A.2d 512 (2010). We then granted the commissioner's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly reverse the trial court's judgment[s] terminating the parental rights of the father and the mother?" In re Joseph W., 297 Conn. 928, 998 A.2d 1195 (2010). We conclude that the father was entitled to contest the neglect adjudication regardless of whether he was a custodial parent and, therefore, we affirm the judgment of the Appellate Court on this alternate ground.
The Appellate Court's opinion sets forth the following facts and procedural history. "Joseph, Jr., was born on July 18, 2005, in Scranton, Pennsylvania. The respondents feared that the department of children and families (department) would take Joseph, Jr., from them because the mother's first child had been committed to the custody of the [commissioner]. . . . Consequently, on the advice of legal counsel, the respondents traveled to Pennsylvania in an attempt to evade the department. The parents were not successful in their attempt to elude the department. On July 21, 2005, three days after his birth, while still in the hospital, Joseph, Jr., was taken into emergency protective custody by the commonwealth of Pennsylvania, to be transferred to the custody of the [commissioner] upon the issuance of an order of temporary custody. Also on July 21, 2005, the [commissioner] took Joseph, Jr., into custody pursuant to an order of temporary custody and filed a neglect petition, on the basis of the doctrine of predictive neglect,
"Daniel was born on July 20, 2006, in Waterbury. On the same day, while Daniel was still in the hospital, the [commissioner] took him into custody pursuant to an emergency ninety-six hour administrative hold. See General Statutes § 17a-101g. On July 24, 2006, the [commissioner] filed a neglect petition and sought an order of temporary custody as to Daniel. The custody order was granted on the same day. The allegations of neglect regarding Daniel were essentially the same as those made in the neglect petition regarding Joseph, Jr. As in the case of Joseph, Jr., Daniel has remained in the custody of the [commissioner] throughout the proceedings leading to this appeal." In re Joseph W., supra, 121 Conn.App. at 607-609, 997 A.2d 512.
On August 2, 2007, a hearing was held on the neglect petitions regarding both children. The father was present, but did not enter a plea. The mother entered a plea of nolo contendere as to the allegations of neglect. "After canvassing the mother, the court, Wilson, J., adjudicated the children neglected pursuant to General Statutes (Rev. to 2007) § 46b-120 (9)(C) and committed the children to the custody of the [commissioner]. Neither respondent appealed from the neglect judgments.
"On November 29, 2007, however, the father filed a motion to open the adjudications of neglect and commitment of the children [pursuant to General Statutes § 52-212],
"On June 16, 2008, the [commissioner] filed a motion asking the court to reconsider
"Thereafter, on August 20, 2008, the father filed a motion to bifurcate the neglect and termination of parental rights proceedings, to which the [commissioner] objected. On August 21, 2008, the [commissioner] filed another motion asking the court to reconsider its May 30, 2008 order requiring the [commissioner] to prove at the termination of parental rights hearing that the children had been neglected. By way of a memorandum of decision dated August 25, 2008, the court, Bear, J., denied the father's motion for bifurcation, sustained the [commissioner's] objection to the motion for bifurcation and denied the [commissioner's] motion for reconsideration." Id., at 609-11, 997 A.2d 512. Specifically, Judge Bear ruled that "[i]f the father is found to be a custodial parent of a child named in such petition on the date of such petition . . . at the consolidated trial [the commissioner will have] the burden of proving by a fair preponderance of the evidence that each such child was neglected or uncared for. . . . If the father is found not to be a custodial parent of such child . . . the father's rights are limited . . . and [the commissioner] does not have the burden of proving by a fair preponderance of the evidence that such child was neglected or uncared for . . . the mother having previously [pleaded] nolo contendere and the court having adjudicated each child neglected. . . ." (Emphasis in original.)
"On September 4, 2008, the court, Olear, J., commenced the termination hearing, beginning with the issue of whether the father was a custodial parent as of the date that the neglect petitions were filed. The father testified that he was present at the hospital when both Joseph, Jr., and Daniel were born, that he signed acknowledgements of paternity for both children while they were in the hospital and that he was there with them for the duration of their stay in the hospital until they were taken into the custody of the [commissioner] within a few days of their respective births. The father also testified that it was his understanding that he and the mother would raise Joseph, Jr., and Daniel together. After the father testified, the [commissioner] called Kathleen Dayner, a social worker with the department, to testify. Dayner testified that both parents were considered custodial before the children were taken into the [commissioner's] custody `because [the parents] were both together.' Following the hearing, the court concluded: `[T]he father today has not produced sufficient evidence to meet
"Thereafter, the court granted a motion filed by the [commissioner] to correct its petition for termination of the respondents' parental rights and to proceed on the basis of the prior adjudications of neglect. Following an evidentiary hearing, the court, by memorandum of decision dated October 1, 2008, terminated the respondents' parental rights as to both Joseph, Jr., and Daniel." In re Joseph W., supra, 121 Conn.App. at 611-12, 997 A.2d 512.
The respondents appealed from the judgments of the trial court to the Appellate Court. A majority of the Appellate Court concluded that the question of whether the father was entitled to enter a plea turned on whether he was a "custodial parent," as that phrase is used in Practice Book (2007) § 35a-1 (b).
This certified appeal followed. The commissioner claims on appeal that the majority of the Appellate Court improperly: (1) allowed the father to mount a collateral attack on the adjudication of neglect; (2) placed the burden of proof on the commissioner to prove that the father was not a custodial parent; (3) concluded that the father was the children's custodial parent; and (4) reversed the judgment of the trial court terminating the mother's parental rights pursuant to General Statutes § 17a-112 (j)(3)(E) when that statute did not require an adjudication of neglect in a prior proceeding and the mother had not challenged the neglect adjudication on appeal.
After oral argument before this court, we ordered the parties to file supplemental briefs on the question of whether a noncustodial parent can be prohibited from entering a plea in a proceeding to adjudicate whether a child is neglected pursuant to General Statutes (Rev. to 2007) § 46b-120 et seq. when the custodial parent has entered a plea of nolo contendere. In response, the parties filed supplemental briefs in which they all agreed that a noncustodial parent must be allowed to enter a plea in a neglect proceeding to contest the issue of whether the child was neglected, but that a noncustodial parent cannot enter a plea that, although the child was neglected, that parent was not responsible for the neglect. In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999) ("[a] finding that the child is neglected is different from finding who is responsible for the child's condition of neglect"); see id. (whether child is neglected is only issue that can be contested in neglect proceedings). The commissioner argued, however, that the father in the present case was not entitled to enter a plea because he was seeking an adjudication that he was not personally responsible for the neglect of the children. The respondents argued that, to the contrary, the father was entitled to enter a plea because he was seeking an adjudication that the children were not neglected.
We agree with the parties that a noncustodial parent cannot be prohibited from entering a plea in a neglect proceeding if the parent is seeking to contest the issue of whether the child was neglected. We also conclude that, because the father in the present case was seeking the right to contest the issue of whether the children were neglected, and was not merely seeking a determination that he was not personally responsible for the neglect, he was entitled to enter a plea even if it is assumed that he was a noncustodial parent. We therefore affirm the judgment of the Appellate Court reversing the judgments of the trial court terminating the respondents' parental rights on this alternate ground.
As a preliminary matter, we set forth the applicable standard of review. Whether a noncustodial parent can be
We begin with the language of the governing statutes and rules of practice. General Statutes § 46b-129 (a) provides in relevant part: "Upon the filing of . . . a [neglect] petition . . . the court shall cause a summons to be issued requiring the parent or parents or the guardian of the child or youth to appear in court at the time and place named. . . ." Section 46b-129 (c) provides in relevant part: "The . . . first hearing on a petition filed pursuant to subsection (a) of this section shall be held in order for the court to . . . (4) advise the parent or guardian of the right to a hearing on the petitions and applications . . . [and] (5) accept a plea regarding the truth of such allegations. . . ." Practice Book (2007) § 35a-1 (b) provides in relevant part: "Notwithstanding any prior statements acknowledging responsibility, the judicial authority shall inquire whether the allegations of the petition are presently admitted or denied. This inquiry shall be made of the custodial parent in neglect, uncared for or dependent matters; and of all appearing parents in termination matters." These provisions clearly provide that a custodial parent has the right to enter a plea in a neglect proceeding, and Practice Book (2007) § 35a-1 (b) seems to suggest by implication that the trial court is not required to accept a plea from a noncustodial parent. We conclude, however, that these provisions are ambiguous as to whether a noncustodial parent is prohibited from entering a plea.
The Appellate Court addressed this question in In re David L., supra, 54 Conn. App. at 186, 733 A.2d 897, in which the commissioner filed a neglect petition naming both parents. At the hearing on the petition, the mother, who was the "custodial parent," entered a nolo contendere plea. Id., at 187, 733 A.2d 897. When the trial court accepted the plea and ordered that an adjudication of neglect would be entered, counsel for the father objected and stated that the father wanted to enter a denial and to have a trial on the issue of neglect. Id. "The trial court denied the father's request because the father was a noncustodial parent and the custodial parent had entered a plea of nolo contendere, and because the father was not contesting the status of the child as being neglected but was arguing that he did nothing to neglect the child." (Emphasis added.) Id., at 187-88, 733 A.2d 897.
Indeed, our research has revealed no case in which a trial court has categorically prohibited a noncustodial parent from entering a plea in a neglect proceeding.
Most importantly, interpreting Practice Book (2007) § 35a-1 (b) to prohibit noncustodial parents from entering a plea in neglect proceedings would raise serious constitutional questions as applied to an acknowledged noncustodial parent who is present and who wants to enter a plea contesting a neglect finding. For example, a neglect finding can form the basis for a termination of parental rights, which both parents clearly have the right to contest. To compel a parent to stand silent while the child is adjudged as neglected, and then to use that unassailable neglect adjudication
In light of the foregoing, we conclude that the most reasonable interpretation of Practice Book (2007) § 35a-1 (b), is that it was intended to require the trial court in neglect proceedings to obtain a plea from at least the custodial parent and to allow the trial court to adjudicate the issue of neglect even if the noncustodial parent was not known, was not present, or declined to enter a plea. The rule was not intended to prohibit a noncustodial parent who is known, who is present and who wants to contest the allegations of neglect from entering a plea. This interpretation is consistent with the Appellate Court's holding in In re David L., supra, 54 Conn. App. at 192, 733 A.2d 897, that the noncustodial father "had a right to participate in the adjudicatory phase to contest whether the child was neglected. . . ." It also is consistent with the trial courts' past practice of allowing parents who clearly are not custodial in any ordinary sense of the word to contest neglect petitions, a practice that is now expressly reflected in the current revision of the rule, Practice Book § 35a-1(a),
The commissioner contends that, because Judge Bear denied the father's motion to open, allowing the father to contest the neglect adjudication constitutes an impermissible collateral attack on the original finding of neglect. See In re Stephen M., 109 Conn.App. 644, 664, 953 A.2d 668 (2008) ("findings in earlier child welfare proceedings cannot be attacked collaterally in later proceedings"). Thus, the commissioner implicitly contends that the father should have appealed immediately from the denial of his motion to open instead of filing a request for a neglect adjudication. See Norwich v. Lebanon, 193 Conn. 342, 346 n. 4, 477 A.2d 115 (1984) (denial of motion to open is appealable final judgment). A review of Judge Bear's order plainly demonstrates, however, that he did not categorically deny the father's motion to open the neglect adjudication. Instead, he permitted the father to file a pleading that potentially could lead to the opening of the neglect adjudication. It is clear, therefore, that Judge Bear's ruling, in which he both denied the father's motion to open the neglect adjudication and allowed the father to contest that adjudication if he could establish that he was a custodial parent, was internally inconsistent.
We have concluded that Judge Bear should have unconditionally granted the father's motion to open the adjudication of neglect once the father demonstrated that he did not stand silent, regardless of whether he was a noncustodial parent. Moreover, the commissioner has not contested on appeal Judge Bear's finding that the father did not stand silent at the original neglect proceeding, nor has the commissioner claimed that that finding could not justify opening the adjudication of neglect. Accordingly, we conclude that the trial court improperly denied the father's motion to open. We therefore reject the commissioner's claim that the neglect adjudication is being subjected to an impermissible collateral attack.
Finally, we address the commissioner's claim that the Appellate Court improperly reversed the judgment of the trial court terminating the mother's parental rights on a ground that was not relevant and that the mother did not raise. The commissioner points out that Judge Olear found two independent statutory grounds for terminating the mother's parental rights, namely, § 17a-112 (j)(3)(B)(i) and (E). Under § 17a-112 (j)(3)(B)(i), the trial court may terminate parental rights if the requirements of § 17a-112 (j)(1) and (2) have been met
We conclude by emphasizing that this court is well aware and concerned that our decision in this matter will require a new neglect proceeding, thereby further delaying any certainty and stability regarding the future of these innocent children. Cf. In re Savanna M., 55 Conn.App. 807, 814, 740 A.2d 484 (1999) ("[w]e have consistently held that allowing a child to languish in foster care is not in the child's best interest"). We are also cognizant, however, that parents have a fundamental right to raise their children as they see fit, in the absence of neglect or abuse. In re Melody L., 290 Conn. 131, 178, 962 A.2d 81 (2009). In an attempt to reconcile these two concerns, it is hereby ordered, pursuant to our supervisory authority over the administration of justice, that the neglect proceeding and any subsequent proceeding to terminate the respondents' parental rights be expedited. See State v. Ouellette, 271 Conn. 740, 762 n. 28, 859 A.2d 907 (2004) ("[s]upervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole" [internal quotation marks omitted]).
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
Because, in the proceedings before Judge Bear, the father disputed the commissioner's claim that he should be barred from entering a plea under In re David L., our review of this issue does not constitute an "ambuscade" of the trial court, even though the father did not raise this claim on appeal. Cf. Hurley v. Heart Physicians, P.C., 298 Conn. 371, 379 n. 7, 3 A.3d 892 (2010) ("[t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge" [internal quotation marks omitted]). Moreover, the commissioner has suffered no prejudice as the result of the father's failure to raise the issue on appeal because we ordered the parties to submit supplemental briefs on the issue.