Opinion
No. FA 06-4019945 S
October 21, 2010
MEMORANDUM OF DECISION
Procedural Background
On May 4, 2006, a support magistrate entered a default judgment in which the defendant, Osborne Tate, was adjudicated the father of Thmiri N. Reddick-Gist (dob 1/19/04). The defendant first filed a motion to open the judgment in March of 2009 but the motion was marked off the May 8, 2009 docket for lack of service. The defendant filed a second motion to open the judgment in November of 2009. On December 9, 2009, the plaintiff mother waived service on the motion to open. On February 19, 2010, Attorney Wolf was appointed as GAL for the minor child. The case appeared on the March 16, 2010 docket. When the case was first called on March 16th the AAG and the GAL were the only two parties present in the courtroom. There was a discussion about the case also appearing on the March 19th docket and in discussing whether to continue the case to the 19th, the magistrate was informed by the GAL she had discussions with the parties and informed them the matter would be addressed by the court on March 16th. The GAL also informed the magistrate she would not be available on the 19th. The defendant apparently appeared later on in the day on March 16th and the magistrate revisited the case on the record but the GAL was no longer in court. The magistrate, after confirming with the defendant that the defendant would appear on March 19th, continued the case to March 19, 2010. On March 19, 2010, neither the defendant nor the plaintiff appeared and as the GAL had previously indicated to the magistrate, she was not present at the March 19th hearing. Inexplicably, the case was continued to April 9, 2010. On April 9th, in the absence of the GAL and over the objection of the state, the magistrate admitted as a full exhibit a purported genetic testing document obtained privately by the defendant (exhibit A) and the magistrate also granted the defendant's motion to open. The state now appeals the magistrate's April 9, 2010 rulings, specifically the admitting into evidence exhibit A and the granting of the motion to open.
There was a contempt motion on the December 9, 2009 docket that apparently was never prosecuted.
Although the February 19th computer generated court action sheet reflects the state was served with the motion on February 19th, actual service on the state did not occur until the second March 16th court hearing.
The plaintiff mother did not appear on either March 16th, March 19th or April 9th. The March 16th transcript suggests that the defendant believed the plaintiff may have waived either service or her appearance. (Transcript of March 16, 2010 p. 6.)
During the first court proceeding on March 16th in discussing future court dates, the GAL attempted to communicate to the court her temporary unavailability for future court dates.
The state argues the magistrate granted the motion to open without an evidentiary hearing. Given this court's ruling as articulated in the body of this opinion, the issue as to whether the April 9th proceedings constituted an `evidentiary hearing' need not be addressed.
Court's legal analysis
It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard . . . It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved. (Citation omitted; internal quotation marks omitted.) Egan v. Egan, 83 Conn.App. 514, 518, 850 A.2d 251 (2004).
Pritchard v. Pritchard, 103 Conn.App. 276, 287 (2007).
The defendant and the state were present for the April 9th ruling but the GAL was not. The GAL had appeared in prior court proceedings, but not at the second March 16th hearing nor the March 19th hearing. The exact reason for the GAL's nonappearance on April 9th is unclear and the record is silent as to the notice, if any, she received regarding the April 9th date. This court nonetheless concludes the GAL's nonappearance was not wilful.
The April 9th transcript reflects the GAL may have been on vacation on April 9th.
The United States Supreme Court has recognized that `both the child and the defendant in a paternity action have a compelling interest in the accuracy of such a determination.' Little v. Streater, 452 US. 1, 13, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981). Connecticut has long recognized that children have a separate and independent interest in family relations matters. See In re Bruce R., 234 Conn. 194, 209-10, 662 A.2d 107 (1995); Guille v. Guille, 196 Conn. 260, 263-64, 492 A.2d 175 (1985); Saivio v. Salvio, 186 Conn. 311, 441 A.2d 190 (1982); Yontef v. Yontef, 185 Conn. 27, 440 A.2d 899 (1981). Our Supreme Court has recognized that both the father and the child in a paternity proceeding have an interest in seeing that their rights to companionship, care and custody are accurately adjudicated. See Lavertue v. Niman, supra, 196 Conn. 408-09. The court in Lavertue v. Niman, supra, 408-09, noted that the child's interests also extend to its health, which may depend on an accurate family history . . . It is in the child's interest not only to have it adjudicated that some man is his or her father and thus liable for support, but to have some assurance that the correct person has been so identified . . . Ragin v. Lee, 78 Conn. App. 848, 861-62 (2003).
The child's fundamental interest in the present case is separate and distinct from the parents' and the state's interests. Ragin at 863. After a careful review this court concludes the magistrate erred when he substantively proceeded with the defendant's motion to open in the absence of the GAL.
C.G.S. § 46b-231(n)(7) delineates the various measures available to this court to accord the appellant relief. The court concludes that by proceeding in the absence of the GAL the magistrate violated the state's and the minor child's due process rights. Given the totality of the circumstances of the case, the matter is hereby remanded back to the magistrate court for proceedings consistent with this court's ruling. In any future hearing that may occur this court is confident the magistrate will be cognizant of the applicable evidentiary case law and the code of evidence as pertaining to the admissibility of a purportedly non-court ordered genetic test result.
In finding a due process violation, this court relies in part, on the dictum in Ragin, holding that a child who is the subject of a paternity action, is an indispensable party to the action:
"`. . . Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action].' (Internal quotation marks omitted.) [ Demarest v. Fire Dept. of Norwalk, 76 Conn.App. 24], 28 (2003)." Ragin at fn 7.