IN RE: Justin F. (2012)

MEMORANDUM OF DECISION REGARDING RESPONDENTS' POSTJUDGMENT MOTIONS

On November 28, 2011, the respondents filed two postjudgment motions in the above-entitled matters.   One motion is entitled “Motion for Permission to Call Our Two Children as Witnesses (2).”   The other motion is captioned “Motion to Set Aside and Open (False and Unlawful) Judgments.”   A hearing on both motions was conducted before the undersigned at the Child Protection Session in Middletown on December 22, 2011.   The following procedural history of this case is relevant to the determination of the present motions.

In a memorandum of decision dated August 3, 2011,¹ this court entered judgments terminating the parental rights of Kimberly A.-L. to Justin F., and the parental rights of both respondents to Hailee L. The respondents appealed those judgments, and the appeal is pending before the Connecticut Appellate Court.

On several dates in August 2011, the respondents filed postjudgment motions in the trial court.   Those pleadings included a motion for a new trial, a motion for reconsideration, a motion to stay and vacate judgment and a motion for articulation.   This court conducted a hearing on those motions on September 14, 2011, and denied each of them in written memoranda of decision under date of September 19, 2011.   The court notes that some of the claims and language contained in the respondents' current motion to set aside and open judgments are very similar to some of the claims and language in the postjudgment motions that the respondents filed last August.

MOTION FOR PERMISSION TO CALL CHILDREN AS WITNESSES

The court first addresses the motion for permission to call the two minor children as witnesses.   This motion appears to relate to the respondents' claim of newly discovered evidence.   Specifically, the respondents allege in their motion to set aside and open judgments that following the conclusion of the TPR trial, they received an email from Justin, and had direct conversations with him.   The respondents, who are self-represented, describe the newly discovered evidence, which appears to have been gleaned from those communications with Justin, in their motion as follows:

Justin and Hailee still remember their custodial God-given parents (Kimberly and Anthony) and have positive memories of us.   Justin and Hailee have expressed and stated that they still love us and are not mad at us.   Justin and Hailee still ask about us and Justin has had contact with us.   Justin still refers to Kimberly as “his mom.”   Hailee still refers to us as “mom and dad.” 2  Justin and Hailee both stated that they miss us, want [desire] to see us and visit with us.   We have made attempts to see both children but the conspirators have denied access.   All the above information was obtained from mid-August 2011 through the filing of said motion.   Based on the above, the court is mandated and obligated under the law to permit our children to testify.  (Respondents' November 28, 2011 “Motion for Permission to Call Our Two Children as Witnesses (2),” page 5.)

The respondents contend that if the two children were permitted to testify at a postjudgment motion hearing, the evidence offered through their testimony would contradict key evidence that DCF presented at the TPR trial with respect to both adjudication and disposition.³  The respondents also assert that such evidence would prompt the court to set aside its judgment terminating their parental rights.   The court is unpersuaded.

Some of the facts which the respondents contend would be proven by the alleged “newly discovered evidence” were known to the court during the TPR trial.   For example, the court specifically found that Justin still “․ had positive feelings for and memories about ․” both respondents.  (Memorandum of Decision dated August 3, 2011, page 84.)   The court credited the testimony of Justin's psychologist, Dr. Diana Martinez, that she had observed Justin's “․ longing throughout the years ․” for contact with the respondents.  (Id., page 42.)   The court was cognizant that Justin had stated in 2008 that he would like to live with his mother.  (Id., page 77, footnote 30.)   The court found that, in 2009, Justin stated that he missed seeing his parents and wished that they would visit with him.  (Id., page 41).   The court also found that Hailee, who was born on October 27, 2003 and has been in state foster care continuously since September 23, 2004, was “․ aware that she had another mommy and daddy but did not know where they had gone ․” and had “vague memories” of the respondents.  (Id., pages 41, 85 and 86.)

Furthermore, even if the children testified in a manner consistent with the respondents' offer of proof, the court does not find that such evidence would materially alter the outcome of the trial.   The court found in its August 2011 memorandum of decision that the adjudicatory grounds of failure to rehabilitate and abandonment by the respondents had been proven by clear and convincing evidence.   That evidence included proof that both respondents had consistently refused to comply with crucial specific steps orders that another court had issued in September 2007 to facilitate reunification, and that both respondents had failed to engage in supervised visits with Justin and Hailee (and hence had no contact with both children) since September 2008.   The court also found by clear and convincing evidence that terminating the respondents' parental rights was in the best interests of both children, who at that time had been in foster care for approximately six years and nine months, and require permanent homes.   Based on the offer of proof, the court finds that the proposed testimony about the children's current attitudes and preferences, even if credited, would not have surmounted the clear and convincing evidence at trial which proved that termination of parental rights was necessary.   The court finds that the alleged newly discovered evidence does not constitute grounds for a new trial, or warrant further evidentiary hearings in this case.

In September 2010, the respondents moved this court for permission to call Justin and Hailee as witnesses during the TPR trial.   A hearing on the motion was conducted before the undersigned.   The children's guardian ad litem, Attorney Lynn Dawson, testified in opposition to the request during that hearing.   The court denied the respondents' motion in a written memorandum of decision.   The court found after hearing credible testimony from the guardian ad litem that Justin and Hailee would be psychologically harmed if required to testify at trial.

Subsequently during the trial, the court heard testimony from Dr. Martinez, the psychologist who has treated Justin since September 2007.   Dr. Martinez testified credibly that Justin is an emotionally fragile child, who destabilizes very easily when exposed to stressors.   Dr. Martinez also opined that Justin's behavior deteriorates at certain times of the year that he associates with memories of his mother.   Dr. Claudia Califano, a psychiatrist who treats Hailee at the Yale Child Study Clinic, also testified at the TPR trial.   It was her opinion that Hailee experiences feelings of anxiety, insecurity, and abandonment which are being addressed in therapy.   The trial testimony of the two mental health professionals corroborated the testimony of Attorney Dawson at the earlier motion hearing.   It was further evidence that demonstrated that it would have been detrimental to Justin and Hailee if they had been permitted to testify at trial.

No evidence was presented during the current hearing by any party about the present psychological status of Justin and Hailee, their treatment since the trial concluded in March 2011, or whether it would presently be psychologically damaging for the children to testify in court.   However, the court need not address such issues here in light of its finding that the proposed testimony of Justin and Hailee at a postjudgment hearing would not materially alter the outcome of the termination trial.

The respondents' motion for permission to call the children as witnesses is hereby denied.

MOTION TO SET ASIDE AND OPEN JUDGMENTS

As noted above, one claim in this motion is predicated on the respondents' contention that they have discovered new evidence which requires that the trial court's judgment be set aside and that a new trial be conducted.   The court incorporates by reference all of the findings and conclusions that it made above with respect to said evidence.   As previously indicated, this court does not find that the respondents' proffer implicates evidence which justifies a new trial or any further evidentiary proceedings in this case.

The court has carefully reviewed and considered all of the other grounds asserted by the respondents in the instant motion.   Many of these claims were previously addressed in earlier rulings by the undersigned, either during the TPR trial, or in the decisions on the postjudgment motions that were filed in August.   This court declines the respondents' invitation to consider once again legal issues that it has previously ruled upon.   At this juncture in the case, any claims of alleged error by the trial court are more appropriately raised in the pending appeal.

After hearing, and following consideration of the respondents' offer of proof and legal arguments, the court finds that the respondents have not established any legal or factual claim that warrants opening the TPR judgments, or conducting a new trial.   The respondents' motion to set aside and open the judgments is hereby denied.

SO ORDERED.

BY THE COURT:

Dyer, J.

FOOTNOTES

FN1. 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..  FN1. 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.

FN2. During the hearing on December 22, 2011, Anthony L. informed the court that the respondents had communicated directly only with Justin, and that the respondents had not had direct contact with Hailee.   The information about Hailee was based on communications that Justin purportedly had with his sibling, and then shared with his parents..  FN2. During the hearing on December 22, 2011, Anthony L. informed the court that the respondents had communicated directly only with Justin, and that the respondents had not had direct contact with Hailee.   The information about Hailee was based on communications that Justin purportedly had with his sibling, and then shared with his parents.

FN3. The respondents had earlier orally raised the claim of newly discovered evidence based on communication with Justin during the motion hearing on September 14, 2011..  FN3. The respondents had earlier orally raised the claim of newly discovered evidence based on communication with Justin during the motion hearing on September 14, 2011.

Dyer, Richard W., J.