IN RE CHRISTOPHER G. No. 30672.
984 A.2d 1111 (2009)
118 Conn.App. 569
In re CHRISTOPHER G.
Appellate Court of Connecticut.
Decided December 22, 2009.
Nicholas J. Adamucci, Bridgeport, for the appellant (respondent mother).
John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).
Theodore L. Freedman, guardian ad litem, Westport, for the minor child.
David Carron, Westport, for the minor child.
GRUENDEL, BEACH and ALVORD, Js.
The respondent mother appeals from the denial of her motion to open the judgment of voluntary termination of her parental
The following facts and procedural history are relevant to the respondent's appeal. The child was born on December 25, 1997. He was adjudicated neglected and uncared for in October, 2003, and placed under protective supervision.
The court canvassed the respondent and found by clear and convincing evidence that her consent was knowing and voluntary. It also found that termination was in the child's best interest. However, before the court rendered a judgment of termination it was informed by the respondent's attorney, Joseph Mulvey, that the respondent and the preadoptive family had discussed entering into an open adoption agreement.
The respondent's attorney informed the court that the agreement had been signed by the respondent and faxed to the preadoptive
On December 12, 2007, the respondent filed a motion for an emergency hearing to address, in part, the failure of her aunt and uncle to return the signed open adoption agreement.
On October 2, 2008, the respondent filed an amended motion to open or set aside the judgment of termination pursuant to General Statutes § 45a-719, alleging that her consent was the product of mutual a mistake.
"In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court's] action.... The manner in which [the court's] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did." (Internal quotation marks omitted.) In re Ilyssa G.,
"A mutual mistake is one that is common to both parties and effects a result that neither intended.... Whether there has been such mistake is a question of fact." (Citation omitted.) Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991). "[T]he trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) In re Travis R., 80 Conn.App. 777, 784, 838 A.2d 1000, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004).
The record contains ample support for the court's determination that the respondent's consent was not the result of a mutual mistake. The court canvassed the respondent at length during the November 21, 2007 termination hearing to ascertain whether her consent to the termination was knowing and voluntary. In response, the respondent acknowledged that she (1) was not under the influence of alcohol, drugs or any prescription medication that would impair her ability to understand the termination proceeding; (2) had the opportunity to talk to her attorney about the termination proceeding and was satisfied with his advice and counsel; (3) understood that the termination enabled the child to be adopted; and (4) understood that she was relinquishing all legal rights and responsibilities for the child, including her right to make decisions and to receive benefits on his behalf, her right to care for him, and her right to custody, guardianship and control over him. The respondent confirmed that her decision to terminate her parental rights was voluntary and free from force or threat and acknowledged that she understood her consent could not be withdrawn once it was accepted by the court.
The court also questioned the respondent regarding her understanding of the open adoption agreement she had signed. She affirmed that she had the opportunity to review the agreement with her attorney, understood its terms and found it to be fair and reasonable. Likewise, the respondent's attorney confirmed that he had reviewed each page of the agreement with the respondent before she signed it and verified that she entered the agreement freely.
Although the parties may have anticipated an adoption by the respondent's uncle and aunt, the record does not support the respondent's argument that her consent was dependent on such adoption. The agreement itself provides: "[A]ll parties agree that the termination of parental rights judgment cannot be reopened for breach of this agreement," and "[t]he birth mother acknowledges that the termination of parental rights ... is irrevocable, even if the intended adoptive parent(s) do not abide by the terms of the [open adoption agreement]." It also states; "The intended adoptive parent(s) and birth mother acknowledge that [the department] is not a party to this [a]greement and that [the department] has no obligation under any
Finally, there is no evidence that the mistake was mutual as to the petitioner. Despite its preference for the respondent's uncle and aunt as an adoptive resource for the child, the respondent's caseworker was careful to caution her that no guarantees could be made that an adoption by her uncle and aunt would ever be consummated. Because the record contains considerable support for the court's findings, we conclude that the court did not abuse its discretion when it denied the respondent's motion to open.
The judgment is affirmed.
In this opinion the other judges concurred.
- No Cases Found