IN RE: Justin F. (2011)

MEMORANDUM OF DECISION RE MOTION FOR A NEW TRIAL

On August 3, 2011, following a lengthy trial, this court filed a 119–page memorandum of decision in which the court entered judgment terminating the respondents' parental rights and decided 33 motions/pleadings that had been filed by the parties.   On August 5, 2011, this court filed a three-paragraph, amended memorandum of decision to correct errors in the original judgment involving two docket numbers and one word.   The respondents, Anthony L. and Kimberly A.-L., have appealed from the judgment and orders issued by the court.

On August 18, 2011, pursuant to the provisions of Connecticut Practice Book Sections 17–4A and 31a–11, and Connecticut General Statutes Section 52–270(a), the respondents have filed the instant motion for a new trial.   A hearing on the motion was held before the undersigned on September 14, 2011.   The respondent, Anthony L. was present in court, as were the assistant attorney general representing the Department of Children and Families, and the attorney for the minor children.   The children's court-appointed guardian ad litem did not appear, but articulated her position on the motion through communication with counsel for the children.   The respondent, Kimberly A.-L., was not present in court but, at her request, participated in the hearing from her home via a telephone hook-up.

The respondents assert numerous legal and constitutional claims in support of their motion for a new trial.   These claims included attacks on the neglect judgment and visitation orders that had been rendered earlier in this case by a coordinate court, and upon a decision issued by the Connecticut Appellate Court.  (In Re Justin F., 116 Conn.App. 83 (2009).)   The respondents contend that the foregoing rulings were erroneous, illegal and void, and should not have been regarded as the law of the case by the undersigned during the recent termination of parental rights trial.   The respondents allege that the trial before the undersigned was illegal and unconstitutional because it constituted relitigation of an earlier TPR petition against them that had been denied in 2007.   The respondents allege numerous reasons why this court's evidentiary and procedural rulings during the trial, and final judgment and orders, are erroneous, illegal and unconstitutional.   They also allege in the motion that the two children received inadequate representation and assistance from their attorney and guardian ad litem.

Anthony L. stated during the hearing on September 14, 2011 that many of the foregoing issues were previously raised with this court during trial.   The court concurs.   The trial record, and/or the memorandum of decision issued in August, will reflect that many of the issues and claims asserted in the motion for a new trial were raised and decided by the court during the recent trial.   Furthermore, to the extent that the respondents are challenging evidentiary or procedural rulings by this court, or any of its legal or factual findings, the respondents have taken a timely appeal, and such claims will be heard and determined in that proceeding.

There were, however, two new issues raised by the respondents during the September 14th hearing that relate to their motion for a new trial, and other recently filed postjudgment motions.

One was the respondent's claim that they should be granted a new trial in order that the case could be decided by a jury of their peers.   The respondents raised such a claim during the course of an earlier trial before another judge.   Their request was denied and a mistrial was later declared in that case.   Anthony L. stated during the September 14th hearing that the respondents had not previously made a request for a jury trial to this court during the present termination of parental rights proceeding.   Jury trials have never been previously conducted in Connecticut's juvenile matters sessions.   There are divergent practices among the various states of our nation with respect to jury trials in juvenile delinquency and child protection cases.   There are different opinions among jurists, practitioners and legal scholars about the constitutional and legal implications of conducting jury trials in juvenile courts.   However, this court will not address the underlying substantive issues implicated by the respondents' request.   The court notes that the respondents' request for a new trial by a jury of their peers comes approximately one year after the bench trial before the undersigned began, and following a decision terminating their parental rights.   It is untimely, and it is not an appropriate reason to grant a new trial.

During the motion hearing, Anthony L. also stated that a new trial should be granted because of newly discovered evidence.   No claim of newly discovered evidence appears to have been specifically mentioned in the respondents' August 18, 2011 motion for a new trial.   During the hearing, the court requested that the respondents make an offer of proof.   The respondents proffered that on an unspecified date in early August their child, Justin, had sent an email in which he indicated that he did not feel abandoned, and wished to live with the respondents.   Anthony L. did not offer the purported communication from Justin F. into evidence at the September 14th hearing.

This court heard testimony during the trial about Justin's psychological condition from the psychologist who has been treating him for the past three years.   The court found from that evidence that Justin is an emotionally fragile child, who will destabilize very quickly when he is exposed to various stressors.  (Memorandum of Decision dated August 3, 2011, page 20.)   The court found during trial that the respondents have refused to accept supervised visits with Justin and Hailee that have been offered to them by the petitioner since September 2008.   As a result, the respondents have not seen either child since then.  (Id., page 84.)   The court found that although Justin still has positive feelings for, and memories about, both respondents, he was saddened and emotionally distressed as a result of his extended lack of contact with them.   The court also found that Justin's behavior has deteriorated, and he suffered emotional harm, as a result of the respondents' decision not to engage in supervised visits with him since September 2008.  (Id.)

The court notes that the new evidence claimed by the respondents involved an email that was allegedly sent by the child during early August 2011.   This was slightly less than four months after the trial ended.   Anthony L. only raised the issue of newly discovered evidence orally at the September 14, 2011 hearing, and it is unclear to the court why the respondents did not specifically plead this claim in their August 18, 2011 motion for a new trial, and why they did not produce the email at hearing.   Anthony L. claimed at the hearing that the respondents were reluctant to present the email to the court because the child was in DCF custody, and might be the subject of retaliation by the petitioner for sending the communication that he allegedly did.   The court does not credit that assertion, particularly since it was the respondents who raised the issue of newly discovered evidence at the hearing as part of their claim for a new trial.

Based on the nature of the respondents' proffer, and the totality of the clear and convincing evidence presented at trial, including, but not limited to, the evidence about Justin's psychological problems, and his extended lack of contact with the respondents, the court does not find that the alleged newly discovered evidence would materially change the outcome of the termination of parental rights trial.

The court has carefully considered all of the claims and arguments asserted by the respondents in their motion for a new trial.   The court does not find that the respondents have demonstrated that a substantial basis in fact or law exists to grant such relief.   The motion is hereby denied.

SO ORDERED.

By the court:

Dyer, J.

Dyer, Richard W., J.