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*********************************************** 
IN RE AISJAHA N.*

(AC 43680)

DiPentima, C. J., and Moll and Harper, Js.**

Syllabus

The respondent mother appealed to this court from the judgment of the

trial court adjudicating her minor child, A, neglected. On appeal, the

mother claimed that the trial court violated her due process rights when

it denied her counsel’s oral motion for a continuance of the neglect

trial because the mother was allegedly hospitalized. The mother had

previously been found to be incompetent and was appointed a guardian

ad litem. On the day of trial, the mother failed to appear. Counsel for

the mother moved for a continuance, indicating to the court that she

had been informed by the mother’s social worker that she could not

attend because she had been hospitalized and asked that the trial not

proceed without her. The mother’s guardian ad litem also objected to

proceeding without her. Counsel for A objected to the continuance and

contended that further delay would not be in the best interest of A. The

court denied the motion and the trial proceeded without the mother. A

was adjudicated neglected and committed to the custody of the petitioner, the Commissioner of Children and Families. Held that the respondent mother’s due process rights were not violated by the trial court’s

denial of her motion for a continuance of the neglect trial; this court,

considering the three-pronged test set forth in Mathews v. Eldridge (424

U.S. 319), determined that the mother failed to present any authority

for her proposition that a neglect proceeding necessarily implicates

the fundamental right to parent one’s child, and her reliance on cases

involving the termination of parental rights was misplaced because termination proceedings differ vastly from neglect proceedings, as a petition for neglect does not seek the permanent and irrevocable ending of

parental rights, the mother had both an attorney and a guardian ad litem

present to advocate on her behalf and, thus, the probable value of a

continuance was lessened, and the government’s interest in ensuring

the health and safety of A was significant, an interest that would have

been substantially impacted by further delaying the resolution of A’s

custodial placement, particularly in light of the fact that at the time of

the trial, A was been under a temporary order of custody for almost

one year.

Argued May 18—officially released August 3, 2020***

Procedural History

Petition by the Commissioner of Children and Families to adjudicate the respondents’ minor child neglected,

brought to the Superior Court in the judicial district of

Waterbury, Juvenile Matters, and tried to the court, Hon.

John Turner, judge trial referee; judgment adjudicating

the minor child neglected and ordering commitment to

the custody of the Commissioner of Children and Families, from which the respondent mother appealed to this

court. Affirmed.

Benjamin M. Wattenmaker, assigned counsel, for the

appellant (respondent mother).

Stephen G. Vitelli, assistant attorney general, with

whom were Benjamin Zivyon, assistant attorney general, and, on the brief, William Tong, attorney general,

for the appellee (petitioner).
Opinion

DiPENTIMA, C. J. The sole issue in this appeal is

whether the court, Hon. John Turner, judge trial referee, erroneously denied the respondent mother’s

motion for a continuance during a trial in which her

daughter, Aisjaha N. (child), was adjudicated neglected.

The oral motion, made by counsel for the respondent

mother at the start of the hearing, was based on her

alleged emergency hospitalization at the time of the

hearing. The court denied the motion and the neglect

hearing proceeded without the respondent mother present. The court found that the child was neglected and

committed her to the care of the petitioner, the Commissioner of Children and Families. This appeal followed.

In her appeal, the respondent mother argues that the

trial court violated her due process rights under the

fifth amendment to the United States constitution by

denying her motion for a continuance of the petitioner’s

neglect petition. The petitioner argues that the court

properly denied her motion for a continuance and that

the respondent mother’s due process rights were not

implicated. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The petitioner filed a petition for

neglect on November 25, 2018, alleging that the child

had been abandoned, had been denied proper care and

attention and was living under conditions injurious to

her well-being. The respondent mother was served with

an order for temporary custody, petition, summons,

notice and an order to appear on December 7, 2018,

and January 9, 2019. She appeared on December 7, 2018,

and entered a plea of denial. The case was continued

until January 23, 2019, for a case status conference and

for the respondent mother to undergo a competency

examination. The respondent mother failed to attend

the hearing and the trial was continued to February

20, 2019, when the respondent mother again failed to

appear. On March 14, 2019, after a competency hearing,

the respondent mother was found to be incompetent

and proceedings were stayed for sixty days to allow

the respondent mother to be restored to competency.

On May 29, 2019, the court found that the respondent

mother had not been restored to competency and

appointed a guardian ad litem for her. The case then

was continued to July 16, 2019, for a case status conference at which a trial on the neglect petition was scheduled for October 28, 2019.

The respondent mother failed to appear for the October 28, 2019 trial. At trial, counsel for the respondent

mother reported that the respondent mother would not

be present because she was hospitalized. Counsel stated:

‘‘I received word from [the social worker for the respondent mother] last week that she—although she had no

verification because she didn’t have a release that she

was told by the maternal grandmother that my client had
been admitted to the hospital. This weekend I actually

did receive a voice mail from my client stating that she

was admitted to the hospital and would not be at today’s

court date. She was anticipating that she would be

released tomorrow, however, I’m not so sure that that

will actually happen. I do not have a release. I just found

out where she was and they’re not going to talk to me

at the hospital. We’re hoping that perhaps the guardian

ad litem will be able to . . . verify information with—

by presenting papers to them that she’s been appointed

as . . . the guardian ad litem.’’ Following a discussion

between the attorneys and the court about the role of

the guardian ad litem, the court asked if the parties were

ready to proceed. Counsel for the respondent mother

objected: ‘‘We are not [ready], Your Honor . . .

[b]ecause my client is not present. She’s not competent.

She can’t be defaulted and she’s admitted to the hospital. . . . And she also left me a voice mail requesting

that because she can’t be present that we not proceed

without her and that we continue the matter. So I cannot

agree to proceed in her absence.’’ The court stated:

‘‘Your client is not being defaulted. Your client is incompetent and because she is incompetent a guardian ad

litem was appointed because she was unable to understand the nature of the proceedings and to assist her

counsel in her defense. That’s the reason that we have

[the] guardian ad litem.’’

The guardian ad litem for the respondent mother

also opposed proceeding: ‘‘I also object to the matter

proceeding because although she is not competent to

assist her counsel, that does not mean she is not competent to assist me as her guardian ad litem and, in

fact, I believe it is required of me as guardian ad litem

to first attempt to . . . explain proceedings in a manner that she can understand. She has the right to be

present during her trial and it is also incumbent upon

me as her guardian ad litem to request such accommodations as are necessary to best serve . . . my ward

given her limitations.’’ The attorney for the minor child

stated that further delaying the proceedings would not

be in the best interest of the child. After a brief recess,

the hearing began with counsel for the respondent

mother renewing her objection to the trial proceeding:

‘‘Your Honor, at this time I . . . would like to renew

my objection to proceeding in my client’s absence given

that she is incompetent. The guardian ad litem is supposed to explain the process as it goes . . . along in

a manner she can understand. She can’t do that without

her being present and my client did leave me a voice

mail saying that she was involuntarily hospitalized and

that she wanted this matter continued.’’

The court then stated: ‘‘I’ll point out that mother

underwent a competency evaluation. It was determined

that she is incompetent and in need of a guardian ad

litem. She was determined to be incompetent because

she was unable to understand the nature of the proceed-
ings and to assist her lawyer with regard to her defense,

and that [the guardian ad litem] was appointed . . .

in May of 2019 and [the guardian ad litem] filed her

appearance as [guardian ad litem] for mother shortly

thereafter, and I understand it’s been orally represented

without any documentation or other corroboration that

mother is not present today because she is undergoing

treatment in a facility . . . .’’

During the trial, the child’s maternal grandmother

testified that her daughter, the respondent mother,

was hospitalized at the time of trial at Saint Raphael’s

Hospital. She testified that she knew that because she

went to visit her there during the week before trial. The

child’s grandmother brought forms completed by the

respondent mother’s physician that the grandmother

planned to submit to the Probate Court in order to seek

conservatorship. These forms, admitted into evidence

during the hearing, however, did not indicate that the

respondent mother was hospitalized the morning of

trial.

In the court’s memorandum of decision finding the

petitioner had proved the allegations of neglect as to

the child, the court set forth the explanation for the

respondent mother’s failure to appear provided by her

counsel. ‘‘Counsel for [the respondent mother] reported

that she believed [respondent mother] was not present

because [she] was in a hospital. Reportedly, her client’s

mother (maternal grandmother) had been told a week

prior to the trial (by someone not identified) that

[respondent mother] had been admitted to the hospital.

Counsel’s representation that [respondent mother] had

been admitted to the hospital was based on a message

from a social worker stating she’d been told by the

maternal grandmother that her client had been admitted

to the hospital. The social worker further stated to . . .

counsel she’d been unable to verify the information.

Counsel’s representation that [her client] had been

admitted to the hospital and could not attend the trial

was further based on a voice mail message from an

unidentified person (whom counsel believed to be [her

client]), that she ‘was admitted to the hospital and

would not be at today’s court date.’ Counsel stated

because she had no release, no verification or other

corroboration to offer the court, she was unable to

confirm that [respondent mother] was in fact in the

hospital. Counsel was without knowledge or reliable

information regarding [her client’s] purported admission to a hospital or whether [she] had been discharged

from the hospital and was unable to come to court

following her discharge. Given the above, the court

ordered the parties to proceed with the trial.’’ The court

further noted that the ‘‘request for a continuance was

predicated upon counsel’s unsubstantiated and uncorroborated hearsay twice removed. If true, [the respondent] mother had been hospitalized for about one week

thus, there had been adequate time to obtain some
written corroboration of [the respondent] mother’s hospitalization and moreover, a written motion for a continuance of the trial should have been filed. Neither

occurred. The court regarded counsel’s statement of

what was reported to her via a voice mail message

from an unidentified person, to be untrustworthy and

unreliable. The court declined to rely on it and attached

no weight or credibility to it. Counsel’s objection to

proceeding with the trial was overruled and her request

for a continuance was denied.’’ The court also noted

that, following the objection, the attorney for the minor

child ‘‘immediately requested the court to proceed with

the trial citing her client has been under an order of

temporary custody for a long time and averring that

further delay was not in the child’s best interest.’’ The

court found that the child was in a state of neglect. The

court determined that it was in the best interest of the

child that she be placed in the custody of the petitioner.

This appeal followed.

We first address the standard of review. The petitioner and the respondent mother differ on the applicable standard of review that should guide our review of

the respondent mother’s claim. The respondent mother

argues that our review is plenary because her due process rights were implicated in the court’s denial of her

continuance. In support of her argument that plenary

review should apply, the respondent mother emphasizes that the right to parent a child is a fundamental

one and discusses the procedural protections that are

offered during a hearing on the termination of parental

rights. A motion for a continuance that is denied, if

it implicates a fundamental right, can prompt plenary

review to determine if it constituted a denial of procedural due process. See In re Shaquanna M., 61 Conn.

App. 592, 602, 767 A.2d 155 (2001) (reviewing denial of

motion for continuance during petition for termination

of parental rights). Here, however, the motion for a

continuance was denied during a trial on a petition for

neglect, not a petition for the termination of parental

rights, as in In re Shaquanna M.

Conversely, the petitioner argues that, because the

respondent mother’s due process rights were not

affected, the applicable standard of review is abuse of

discretion. Further, the petitioner emphasizes that we

generally review a denial of a motion for a continuance

for an abuse of discretion. See State v. Beckenbach, 198

Conn. 43, 47, 501 A.2d 752 (1985).

To determine which standard of review is applicable,

we turn to In re Shaquanna M., supra, 61 Conn. App.

594. In that case, the respondent claimed that she was

denied her procedural due process rights when the trial

court denied her motion for a continuance during a

termination of parental rights trial. Id. This court framed

the issue as ‘‘whether a continuance was necessary to

ensure the respondent’s right to due process.’’ Id., 600.
In addressing the respondent’s claim, this court began

its analysis with the following: ‘‘Whether the denial of

a continuance has been shown by the respondent to

have interfered with her basic constitutional right to

raise her children, thereby depriving her of procedural

due process, is the issue of this case. Its resolution is

a question of law for which our review is plenary. . . .

The abuse of discretion standard does not apply to

constitutional . . . claims, which are reviewed de novo

by the courts.’’ (Internal quotation marks omitted.) Id.

Although, in the present case, the respondent’s

motion for a continuance was denied in a neglect proceeding, and not a termination of parental rights proceeding, the respondent’s claim and arguments in support thereof are similar to those presented in In re

Shaquanna M.—that the denial of the motion for a

continuance interfered with her fundamental right.

Therefore, in accordance with In re Shaquanna M., we

exercise plenary review and, accordingly, we conclude

that the trial court did not err in denying the respondent

mother’s motion for a continuance and proceeding to

trial on the neglect petition.1

A denial of procedural due process triggers analysis

under the three-pronged test developed in Mathews v.

Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18

(1976). This test balances three competing interests:

‘‘[f]irst, the private interest that will be affected by the

official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and

the probable value, if any, of additional or substitute

procedural safeguards; and finally, the [g]overnment’s

interest, including the function involved and the fiscal

and the administrative burdens that the additional or

substitute procedural requirements would entail.’’ Id.,

335.

As to the first prong, the respondent mother argues

that the interest involved here is her fundamental right

to parent her child. She contends that the petitioner’s

neglect petition, which sought to place her child in the

custody of the petitioner, infringed on that constitutional right. In support of this position, the respondent

mother cites to cases involving the termination of parental rights. See In re Matthew P., 153 Conn. App. 667,

102 A.3d 1127, cert. denied, 315 Conn. 902, 104 A.3d

106 (2014); In re Shaquanna M., supra, 61 Conn. App.

592. At issue here, however, is a petition for neglect.

General Statutes § 46b-129 (b) provides in relevant part

that a child may be found neglected if ‘‘there is reasonable cause to believe that (1) the child or youth is

suffering from serious physical illness or serious physical injury or is in immediate physical danger from the

child’s or youth’s surroundings, and (2) as a result of

said conditions, the child’s or youth’s safety is endangered and immediate removal from such surroundings

is necessary to ensure the child’s or youth’s safety
. . . .’’ The court then either holds a hearing with the

parents or caretaker of the child to determine whether

the court should vest the child’s temporary care and

custody in another person or suitable agency, or issues

an ex parte order vesting the child’s temporary care in

another person or agency. See General Statutes § 46b129 (b). Following the hearing, the court shall issue

‘‘specific steps the commissioner and the parent or

guardian shall take for the parent or guardian to regain

or to retain custody of the child or youth . . . .’’ General Statutes § 46b-129 (c) (6).

The respondent mother argues that the neglect proceeding is an infringement on her fundamental right to

parent her child. She cites no authority for the proposition that a neglect proceeding necessarily implicates

that right. Moreover, the right to parent a child is not

limitless. See Roth v. Weston, 259 Conn. 202, 224, 789

A.2d 431 (2002). In fact, the state has the responsibility

to act in order to protect the health and safety of children. Id. Indeed, ‘‘it is unquestionable that in the face of

allegations that parents are unfit, the state may intrude

upon a family’s integrity.§ Id.; see also General Statutes

§§ 17a-112 (j) and 45a-717.

The respondent mother’s argument also overlooks

the fact that a neglect petition initiates a proceeding

that has a distinctly different goal from that of a termination of parental rights proceeding. A petition for neglect

does not seek the permanent and irrevocable ending

of the parental rights that is central to the termination

proceeding. See, e.g., In re Jermaine S., 86 Conn. App.

819, 828 n.7, 863 A.2d 720, cert. denied, 273 Conn. 938,

875 A.2d 43 (2005). Indeed, one of the goals of a neglect

proceeding is the development of specific steps that

will allow the parent to regain custody of his or her

child. Accordingly, the respondent mother’s reliance on

termination of parental rights cases is misplaced.

The second prong of Mathews addresses the risk of

an erroneous deprivation and the probable value of additional or substitute procedural safeguards. See Mathews

v. Eldridge, supra, 424 U.S. 335. The respondent mother

contends that granting her motion for a continuance was

an additional procedure that would have substantial

value. She argues further that the presence of the guardian ad litem and attorney were not enough to protect the

respondent mother from wrongful deprivation. The petitionermaintainsthatgrantingthecontinuancewouldnot

have added significant value because the respondent

mother’s interests were protected sufficiently by her

attorney and the guardian ad litem who was assigned to

represent the respondent mother’s interests.

It is well established that ‘‘each party to a litigation has

the undoubted right to be present at the trial.’’ Anderson

v. Snyder, 91 Conn. 404, 408, 99 A. 1032 (1917). This

right, however, is not absolute. If a litigant does not

appear or is voluntarily absent from court, the court is
not required to halt proceedings until that person can

attend. See Automotive Twins, Inc. v. Klein, 138 Conn.

28, 35, 82 A.2d 146 (1951).

The guardian ad litem supported the respondent

mother’s motion for continuance and told the court that,

‘‘although [the respondent mother] is not competent

to assist her counsel, that does not mean she is not

competent to assist me as her guardian ad litem and,

in fact, I believe it is required of me as guardian ad

litem to first attempt to . . .explain proceedings in a

matter that she can understand. She has the right to be

present during her trial and it is incumbent upon me

as her guardian ad litem to request such accommodations as are necessary to best serve . . . my ward given

her limitations.’’

The court denied the motion for a continuance and

stated: ‘‘Your client is not being defaulted. Your client

is incompetent and because she is incompetent a guardian ad litem was appointed because she was unable to

understand the nature of the proceedings and to assist

her counsel in her defense.’’

The record reveals that the respondent mother’s

attorney and her guardian ad litem advocated zealously

on her behalf throughout the trial. Further, the court

did not default the respondent mother for not attending

the hearing. Although the guardian ad litem does not

replace the respondent mother at trial, the potential

value of a continuance was lessened by the presence

of the guardian ad litem and the previous finding that

the respondent mother was incompetent. Significantly,

in response to the request for the continuance, the attorney for the minor child stated: ‘‘Your Honor, I ask that

the trial proceed. . . . [T]his child has been under an

order of temporary custody for quite a long time. Mother

is incompetent to participate in any proceedings at any

rate. I just think that further delay is not in the best

interest of the child.’’ In addition, as noted by the trial

court, if the respondent mother had been hospitalized

since the prior week, ‘‘there had been adequate time

to obtain some written corroboration of [her] hospitalization and moreover, a written motion for a continuance of the trial should have been filed.’’

The final prong to be considered is the government’s

interest, including the financial and administrative burdens of additional procedures. See Mathews v.Eldridge,

supra, 424 U.S. 335. The government’s interest here,

ensuring the health and safety of the child, is significant.

Granting the continuance likely would have placed a

substantial burden on this governmental interest, particularly, as noted by the attorney for the minor child,

in light of the prior repeated delays in this case, mostly

as a result of the respondent mother’s failure to appear.

As discussed previously in this opinion, the petitioner

invoked a ninety-six hour hold on November 25, 2018,

and then moved for an order of temporary custody and a
neglect petition on November 28, 2018. The respondent

mother appeared on the first court date on December

7, 2018, but failed to appear on January 23 and February

20, 2019, for subsequent hearings. At the time of the

trial on October 28, 2019, the child had been under an

order of temporary custody for almost one year. As

discussed previously in this opinion, at trial, the attorney for the minor child noted that the child had been

under the order of temporary custody for a lengthy

period of time and argued that further delay was not

in the best interest of the child.

Although the financial and administrative burdens of

continuing the hearing may not have been significant,

the delay in resolving the child’s custodial placement

would have substantially impacted the government’s

interest in resolving the child’s custodial determination

swiftly and ensuring the care and safety of the child.

We note the importance of individuals, especially parents in child custody proceedings, being able to attend

hearings in which their fundamental rights are at issue.

This, however, is not such a case. Accordingly, our consideration of the Mathews factors leads us to conclude

that the respondent mother’s procedural due process

rights were not violated by the court’s denial of her

motion for a continuance of the neglect proceeding.2

The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with the spirit and intent of General Statutes § 46b-142

(b) and Practice Book § 79a-12, the names of the parties involved in this

appeal are not disclosed. The records and papers of this case shall be open

for inspection only to persons having a proper interest therein and upon

order of the Appellate Court.

** The listing of judges reflects their seniority status on this court as of

the date of oral argument.

*** August 3, 2020, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 This claim was preserved, and thus we need not consider the Golding

factors as presented in the respondent mother’s brief. See State v. Golding,

213 Conn, 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,

317 Conn. 773, 781, 120 A.3d 1188 (2015).

2 We also note that the court did not default the respondent mother for

not attending the hearing and, therefore, the petitioner was put to her proof

on the allegations of the petition.