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*********************************************** 
IN RE MADISON C. ET AL*

(AC 44926)

Moll, Cradle and Clark, Js.

Syllabus

The respondent mother, whose parental rights as to her minor children

previously had been terminated, appealed from the judgment of the trial

court granting the motion to strike her petition for a new trial filed by

the Commissioner of Children and Families. In her petition, the mother

made allegations that she claimed constituted newly discovered evidence that, if known during the pendency of her termination trial, would

have affected the outcome, specifically, that the court had approved

permanency plans following the termination trial seeking to reunite the

minor children with their father and that, following her release from

prison after the termination trial, she had achieved a degree of personal

rehabilitation sufficient to encourage the belief that she could resume

a responsible position in the children’s lives. The court concluded that

the mother had failed to plead sufficient facts for a new trial pursuant

to statute (§ 52-270). On the plaintiff’s appeal, held that the trial court

properly granted the motion to strike the petition for a new trial as it

failed to state a claim on which relief could be granted: the mother’s

allegations in her petition did not constitute newly discovered evidence

as the court’s orders approving new permanency plans were entered well

after the termination trial had ended and judgment had been rendered

terminating the mother’s parental rights and, thus, were not facts that

existed at the time of her trial; moreover, the mother’s allegation that

she had achieved a degree of personal rehabilitation sufficient to encourage the belief that she could resume a responsible position in her children’s lives also concerned events that occurred after her trial and were

but a change in circumstances, as evidence in support of facts or events

that did not exist or had not yet occurred at the time of trial is not and

cannot be newly discovered.

Argued February 3—officially released June 8, 2022**

Procedural History

Petitions by the Commissioner of Children and Families to terminate the respondents’ parental rights with

respect to their minor children, brought to the Superior

Court in the judicial district of New Britain, Juvenile

Matters, where the petitions were withdrawn as to the

respondent father; thereafter, the matter was tried to

the court, Aaron, J.; judgments terminating the respondent mother’s parental rights, from which the respondent mother appealed to this court, Bright, C. J., and

Suarez and Lavery, Js., which affirmed the judgments;

subsequently, the respondent mother filed a petition

for a new trial and the court, C. Taylor, J., granted the

motion to strike the petition filed by the Commissioner

of Children and Families and rendered judgment thereon,

from which the respondent mother appealed to this

court. Affirmed.

Albert J. Oneto IV, assigned counsel, for the appellant

(respondent mother).

Benjamin Abrams, assistant attorney general, with

whom, on the brief, were William Tong, attorney general, and Evan O’Roark, assistant attorney general, for

the appellee (petitioner Commissioner of Children and
Families).
Opinion

CLARK, J. Following the termination of her parental

rights as to her three children,1

the respondent, Patricia

K., filed a petition for a new trial (petition),2 pursuant

to General Statutes § 52-270.3

In response, the Commissioner of Children and Families (commissioner) filed

a motion to strike for failure to state a claim upon which

relief can be granted, which the court ultimately granted

and rendered judgment thereon. The respondent appeals

from that judgment, claiming that the court improperly

granted the motion to strike her petition because she

had alleged newly discovered evidence that, if known

during the pendency of her trial, likely would have

altered the outcome.4 Because the facts averred in the

respondent’s petition do not constitute newly discovered evidence within the meaning of § 52-270, we affirm

the judgment of the trial court.

The following facts, as summarized by this court in

the respondent’s direct appeal from the judgments terminating her parental rights; see In re Madison C., 201

Conn. App. 184, 241 A.3d 756, cert. denied, 335 Conn.

985, 242 A.3d 480 (2020); and procedural history are

relevant to our resolution of this appeal. The respondent

and Chester C. are the biological parents of Madison,

Ryan, and Andrew. Id., 186. The Department of Children

and Families (department) became involved with the

family in 2013, when Madison tested positive for marijuana and methadone upon birth. Id. Ryan, too, tested

positive for marijuana and methadone when he was

born in 2015. Id. Both Madison and Ryan were discharged from the hospital in the care of their parents.

Id. In April, 2017, the police responded to a domestic

dispute at the family’s home where they found drug

paraphernalia. Id. The police also found that the house

was in deplorable condition. Id. On May 2, 2017, Madison and Ryan were removed from their parents’ care

pursuant to an order of temporary custody and placed

in a nonrelative foster home. Id. That day, the commissioner also filed neglect petitions as to Madison and

Ryan, alleging that they were being permitted to live

under conditions, circumstances, or associations injurious to their well-being. Id.

When Andrew was born in November, 2017, he tested

positive for marijuana, methadone, and cocaine. Id.,

187. Pursuant to an order of temporary custody, Andrew

was discharged from the hospital to the care of a nonrelative foster family. Id. On November 20, 2017, the commissioner filed a neglect petition as to Andrew on the

basis of predictive neglect. Id. On November 30, 2017,

the court, Hon. Barbara M. Quinn, judge trial referee,

consolidated the three neglect petitions, adjudicated

the children neglected, and ordered them committed

to the custody of the commissioner. Id. The court also

ordered specific steps for the respondent and Chester

C. Id.
On February 1, 2019, the commissioner filed petitions

to terminate the parental rights of the respondent and

Chester C. to each of the three children ‘‘on the grounds

that the court in the prior proceeding found the children

to have been neglected, and [the parents] had failed to

achieve the degree of personal rehabilitation that would

encourage the belief that, within a reasonable time and

considering the ages and needs of the children, they

could assume a responsible position in their children’s

lives.’’5

Id.; see General Statutes § 17a-112 (j) (3) (B)

(i). The court, Aaron, J., tried the termination of parental rights petitions on August 5, 6, 7, and 16, 2019.6

In

re Madison C., supra, 201 Conn. App. 188. On August 16,

2019, prior to the close of evidence, the commissioner

withdrew the termination petitions as to Chester C.7

Id.

The court issued a memorandum of decision on

November 8, 2019, granting the petitions to terminate

the respondent’s parental rights to the children. Id. In

the adjudicatory phase of the proceedings, the court

found by clear and convincing evidence that the respondent had not and would not achieve the degree of personal rehabilitation that would encourage the belief

that within a reasonable time, considering the ages and

needs of all three children, she could assume a responsible position in their lives. Id., 188–89.

In the dispositional phase of the proceedings, the court

made findings on the criteria set forth in § 17a-112 (k),

and ‘‘noted that the respondent had not successfully

taken advantage of or complied with the services provided by the department and had not shown a willingness or ability to provide a safe and nurturing environment in which she appropriately could parent the children.

Additionally, the court found that there was credible

evidence to suggest that the ‘toxic relationship between

the parents and [the] respondent’s overbearing and

manipulative behavior toward [Chester C.] is an impediment to [Chester C.’s] effective parenting of the children.’ ’’ Id., 189. The court rendered judgments terminating the respondent’s parental rights to each of the children.

The respondent appealed.

On appeal to this court, the respondent did not challenge Judge Aaron’s findings that she had failed to rehabilitate, had not taken advantage of the services offered

to her by the department, had not shown a willingness

or ability to provide a safe and nurturing environment

for the children or that her behavior toward Chester C.

was an impediment to his ability to effectively parent

the children. See id., 189. Rather, she claimed that the

‘‘court deprived her of her substantive due process

rights as guaranteed by the fourteenth amendment to

the United States constitution because termination of

her parental rights was not the least restrictive means

necessary to ensure the state’s compelling interest in

protecting the best interests of the children.’’ Id., 189–

90.
The respondent’s argument that there were less restrictive alternatives to the termination of her parental rights

was predicated on the commissioner’s withdrawal, on

the last day of trial, of the termination petitions as to

Chester C., which resulted in the commissioner’s filing

of new permanency plans to reunify the children with

Chester C., rather than to place them for adoption. Id.,

191. She argued that, because there was a change of

permanency plans, ‘‘alternatives to termination were

appropriate because the court did not base its decision

on a finding that she posed a physical threat to the

safety of the children or that she would abuse her parental status in ways that could harm the children if the

children were reunified with Chester C. Rather, she

argue[d], the court based its decision to terminate [her

parental rights] on its concern that she was ‘an impediment to [the] father’s effective parenting of the children.’ She contend[ed] that the trial court’s concerns

about the potential for her to undermine Chester C.’s

parenting could have been addressed through further

orders limiting her guardianship, rather than by terminating her parental rights.’’ Id. The respondent, however, acknowledged that she had not preserved this

claim of constitutional error at trial; id., 190; and sought

to prevail on appeal pursuant to 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).

This court concluded that the record was inadequate

to review the respondent’s unpreserved constitutional

claim and affirmed the judgments of the trial court. In

re Madison C., supra, 201 Conn. App. 196; see also State

v. Golding, supra, 213 Conn. 239 (party can prevail on

constitutional claim that was not preserved at trial only

if record is adequate to review alleged error). In reaching this conclusion, this court noted that the respondent

had not proposed any alternative permanency plans at

trial that would have addressed the trial court’s concerns while allowing her to maintain her parental rights.

In re Madison C., supra, 196. ‘‘[T]he only possible reference to an alternative plan came, not during the presentation of evidence, but during closing arguments when

the respondent’s counsel stated: ‘If your plan is to

reunify with the father and not free these children for

adoption, I submit that my client’s parental rights should

not be terminated in this matter.’ ’’ Id., 194. In the absence

of alternative proposals, the trial court had no factual

predicates on which to make a finding as to whether

there were narrower means, other than termination,

available to protect the children’s welfare and afford

them permanency. Id., 194–96. Accordingly, this court

concluded that the respondent’s failure to raise this

claim at trial, file a motion to reargue or seek an articulation as to whether the court had considered alternatives

to terminating her parental rights ‘‘left the record devoid

of evidence and findings necessary to review her constitutional claim.’’ Id., 194.
On January 21, 2021, the respondent filed the instant

petition for a new termination of parental rights trial

pursuant to § 52-270. She alleged in relevant part that

‘‘[o]n or about August 16, 2019, the . . . commissioner

withdrew the petitions to terminate [Chester C.’s]

parental rights, but proceeded with a trial to terminate

the [respondent’s] parental rights. . . . [P]ursuant to

the fourteenth amendment to the United States constitution, the . . . commissioner was constitutionally

prohibited from obtaining judgments of the Superior

Court terminating [her] parental rights absent a compelling governmental interest.’’ The respondent further

averred that termination of her parental rights ‘‘was or

may not have been necessary’’ in one or more of the

following ways: ‘‘to secure for the children a permanent

placement as required by General Statutes §§ 17a-110,

17a-110a, and 17a-11a . . . [or] to protect the children’s

essential health and safety because less drastic measures were available to the . . . commissioner . . . .’’8

The respondent asserted as the ground for a new trial

that she had ‘‘discovered material evidence in her favor

that she could not have reasonably discovered before

or during trial . . . .’’ The newly discovered evidence

she alleged in support of her claim were the permanency

plans seeking to reunify Madison, Ryan, and Andrew

with Chester C., which the court, C. Taylor, J., approved

several months after the termination of parental rights

trial had concluded.9 Additionally, the respondent alleged

that there was newly discovered evidence demonstrating that she had ‘‘achieved a degree of personal rehabilitation sufficient to encourage the belief that she could

resume a responsible position in her children’s lives.’’

Specifically, the respondent alleged that, after her release

from prison on June 11, 2020; see footnotes 5 and 6 of

this opinion; she ‘‘found gainful employment, completed

parenting education, graduated from intensive outpatient substance abuse treatment . . . engaged in mental health counseling . . . [and] did not interfere with

[Chester C.’s] effective parenting of the children . . . .’’

On February 23, 2021, the commissioner filed a motion

to strike the petition, arguing that the petition did not

allege ‘‘newly discovered evidence’’ within the meaning

of § 52-270 because it alleged events that occurred after

the conclusion of the termination of parental rights trial.

On March 15, 2021, the respondent filed a memorandum

in opposition to the motion to strike. Judge Taylor held

a hearing on the motion to strike on May 24, 2021,10

and summarily granted the motion on the same date.

The court issued a written articulation of its decision

on July 15, 2021.

In its articulation, the court first addressed the respondent’s claim that, when the commissioner withdrew the

termination petitions against Chester C., she gained a

constitutional defense to the termination petitions

against her because the children were no longer going
to be adopted, and there was no compelling state need

to terminate her parental rights. The court noted that

the respondent had pursued this claim on direct appeal

and that this court had concluded that the respondent

had failed to provide an adequate record for review.

As to the respondent’s allegation that she was entitled

to a new trial because she had achieved a greater degree

of rehabilitation than the court was led to believe at

the trial on the termination petitions, the court observed

that she could have made such arguments in her appeal

from the judgments terminating her parental rights.

In sum, the court concluded that the respondent’s

petition had failed to plead sufficient facts to support

a petition for a new trial and granted the motion to

strike, explaining that, ‘‘[i]f an allegation as to a change

of circumstances after trial constituted a sufficient

basis to grant a new trial on a termination of parental

rights petition, a parent could prevent a child from achieving permanency and stability indefinitely.’’ (Emphasis

added.) The respondent subsequently appealed to this

court.11

On appeal, the respondent claims that the trial court

improperly granted the motion to strike her petition

because she alleged facts sufficient to state a claim for

a new trial pursuant to § 52-270 on the ground of newly

discovered evidence. Specifically, she argues that her

petition alleged that, following the conclusion of her

trial, she discovered new evidence demonstrating that

it was unnecessary, as a matter of due process, to terminate her parental rights because after her parental

rights had been terminated (1) the trial court approved

permanency plans for the children calling for reunification with Chester C. and (2) she had rehabilitated to a

point where she could safely assume a responsible position in the lives of her children, contrary to what Judge

Aaron had been led to believe at trial. The commissioner

argues that, for purposes of § 52-270, newly discovered

evidence must be evidence of facts that existed at the

time of the original trial and, therefore, the court properly granted the motion to strike the respondent’s petition. We agree with the commissioner.

We begin our discussion by setting forth our standard

of review. ‘‘Because a motion to strike challenges the

legal sufficiency of a pleading and, consequently, requires

no factual findings by the trial court, our review of

the court’s ruling on [a motion to strike] is plenary.’’

(Internal quotation marks omitted.) Hirsch v. Woermer,

184 Conn. App. 583, 587, 195 A.3d 1182, cert. denied,

330 Conn. 938, 195 A.3d 384 (2018). ‘‘We take the facts

to be those alleged in the complaint that has been

stricken and we construe the complaint in the manner

most favorable to sustaining its legal sufficiency. . . .

Thus, [i]f facts provable in the complaint would support

a cause of action, the motion to strike must be denied.’’

(Internal quotation marks omitted.) Thomas v. State,
130 Conn. App. 533, 543, 24 A.3d 12, cert. denied, 302

Conn. 945, 30 A.3d 2 (2011). ‘‘It is fundamental that in

determining the sufficiency of a complaint challenged

by a [party’s] motion to strike, all well-pleaded facts

and those facts necessarily implied from the allegations

are taken as admitted.’’ (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises

Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).

A motion to strike, however, is properly granted by the

trial court ‘‘if the complaint alleges mere conclusions of

law that are unsupported by the facts alleged.’’ (Internal

quotation marks omitted.) Fort Trumbull Conservancy,

LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

A trial court’s authority to grant a petition for a new

trial is set forth in § 52-270 (a), which provides in relevant part that ‘‘[t]he Superior Court may grant a new

trial of any action that may come before it, for . . .

the discovery of new evidence . . . .’’ What constitutes

newly discovered evidence is not defined by statute,

but ‘‘[t]he law on the subject of new trials for [the

discovery of new evidence] is well settled in this state

by a long and uniform course of judicial decisions

. . . .’’ Hamlin v. State, 48 Conn. 92, 93 (1880). Our

appellate case law establishes that ‘‘[a] party is entitled

to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered,

will be material to the issue on a new trial, could not

have been discovered and produced, on the trial which

was had, by the exercise of due diligence, is not merely

cumulative and is likely to produce a different result.’’

(Internal quotation marks omitted.) Johnson v. Raffy’s

Cafe ́ I, LLC, 173 Conn. App. 193, 211, 163 A.3d 672

(2017); see also Asherman v. State, 202 Conn. 429, 434,

521 A.2d 578 (1987), as further refined in Shabazz v.

State, 259 Conn. 811, 827–28, 792 A.2d 797 (2002); Hamlin v. State, supra, 93–94. ‘‘This strict standard is meant

to effectuate the underlying equitable principle that

once a judgment is rendered it is to be considered final,

and should not be disturbed by posttrial motions except

for a compelling reason.’’ (Internal quotation marks

omitted.) Asherman v. State, supra, 434.

It is well established that the granting of a new trial

‘‘is not intended to reach errors available on appeal of

which the party should have been aware at the time

when an appeal might have been taken. . . . It is an

additional safeguard to prevent injustice in cases where

the usual remedy by appeal does not lie or where, if

there is an adequate remedy by appeal, the party has

been prevented from pursuing it by fraud, mistake or

accident. . . . [Section 52-270] does not furnish a substitute for, nor an alternative to, an ordinary appeal,

but applies only when no other remedy is adequate and

when in equity and good conscience relief against a

judgment should be granted.’’ (Citation omitted; emphasis omitted; internal quotation marks omitted.) LaBow

v. LaBow, 69 Conn. App. 760, 766, 796 A.2d 592, cert.
denied, 261 Conn. 903, 802 A.2d 853 (2002). ‘‘[T]he

causes for which new trials may be granted . . . are

only such as show that the parties did not have a fair

and full hearing at the first trial . . . .’’ (Internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208,

239, 764 A.2d 739 (2001).

I

We first consider the respondent’s allegation that, several months after the conclusion of the trial on the petition

to terminate her parental rights, the court entered orders

approving new permanency plans for the children, which

called for reunification with Chester C. Because those

orders were entered well after the trial had ended and

judgment had been rendered terminating the respondent’s parental rights, we conclude that the respondent

has not alleged the existence of newly discovered evidence within the meaning of § 52-270. As a result, the

court properly concluded that this allegation does not

state a claim for a new trial on the basis of newly discovered evidence.

Our case law makes clear that a party seeking a new

trial under § 52-270 on the basis of the discovery of

new evidence must allege evidence of facts or events

that existed at the time of the original proceeding. See

Lozada v. Warden, 24 Conn. App. 723, 725, 591 A.2d

1272 (1991) (evidence of first habeas counsel’s ineffectiveness is not newly discovered evidence sufficient to

support petition for new trial because such evidence

did not exist, but rather was generated, at time of first

habeas trial), aff’d, 223 Conn. 834, 613 A.2d 818 (1992);

Wendt v. Wendt, Superior Court, judicial district of

Stamford-Norwalk, Docket No. FA-99-0172598-S (March

2, 2001) (newly discovered evidence must be based on

facts in existence at trial); State v. Goodwin, 3 Conn.

Cir. 386, 390–91, 215 A.2d 913 (evidence that is inadmissible at time of trial because it did not exist at time of

trial is not newly discovered evidence), cert. denied,

153 Conn. 725, 213 A.2d 525 (1965); see also Black’s Law

Dictionary (11th Ed. 2019) p. 701 (‘‘newly discovered

evidence’’ is evidence in existence at time of trial, which

then unknown to party, is later discovered). Evidence

in support of facts or events that did not exist or had

not yet occurred at the time of trial, is not, and cannot

be, newly discovered.

Our conclusion that a petition for a new trial on the

ground of newly discovered evidence must be based

on evidence offered to prove facts that existed at the

time of the original trial is consistent with this state’s

well settled standard governing the merits of a petition

for a new trial. In Connecticut, a party seeking to prevail

on a petition for a new trial on the ground of newly

discovered evidence must demonstrate that the evidence ‘‘could not have been discovered and produced

[in] the former trial by the exercise of due diligence.’’

(Internal quotation marks omitted.) Skakel v. State, 295
Conn. 447, 507, 991 A.2d 414 (2010). ‘‘[I]f the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted.’’ (Internal

quotation marks omitted.) Id., 506. The requirement

that a party must have exercised due diligence to discover what could have been known at trial is impossible

to square with a definition of newly discovered evidence

that includes evidence of facts that did not exist at the

time of trial. A party simply cannot be expected to

diligently pursue evidence establishing facts that did

not exist at trial. See Wendt v. Wendt, supra, Superior

Court, Docket No. FA-99-0172598-S (‘‘[b]y definition,

evidence of posttrial events can never be discovered at

the time of trial, regardless of the degree of diligence

exercised’’ (emphasis in original)).

The respondent nevertheless contends that our

Supreme Court’s decisions in Kubeck v. Foremost Foods

Co., 190 Conn. 667, 461 A.2d 1380 (1983), and Taborsky

v. State, 142 Conn. 619, 116 A.2d 433 (1955), stand for

the proposition that a trial court may grant a petition

for a new trial even though the alleged newly discovered

evidence seeks to establish facts or events that occurred

or came into existence after a trial has ended. We are

not persuaded.

In Kubeck, the plaintiff commenced a personal injury

action after sustaining injuries in a motor vehicle crash.

Kubeck v. Foremost Foods Co., supra, 190 Conn. 668.

Because the court found in favor of the plaintiff as to

liability on summary judgment, only the issue of damages was tried to the jury, which awarded the plaintiff

$10,000. Id. The plaintiff later filed a petition for a new

trial in light of newly discovered evidence indicating

that she had suffered a disc injury in the motor vehicle

collision and that, therefore, the original judgment was

inadequate and a new trial would produce a different

result. Id., 668–71. The trial court denied her petition

on the ground that she had failed to show that the

new evidence could not have been discovered with due

diligence prior to the first trial. Id., 671. On appeal, our

Supreme Court reversed the court’s judgment, concluding that the court had abused its discretion because,

in finding that the plaintiff had failed to exercise due

diligence, it had erroneously imputed to the plaintiff the

failure of her doctors to discover the injury. Id., 672–74.

Kubeck did not hold that a petition for a new trial ‘‘need

not be predicated on facts existing at the time of trial.’’

Nothing in Kubeck suggests that the newly discovered

medical condition at issue in that case did not exist at

the time of trial. On the contrary, our Supreme Court

noted that the trial court had found that the disc injury

was causally related to the motor vehicle crash and that

the trial court’s conclusion that the plaintiff had failed

to exercise due diligence was supportable only if the

failure of the plaintiff’s doctors to discover the disc

injury prior to trial was imputed to the plaintiff. Id.,
672–73. In other words, the analysis in Kubeck presumed that the disc injury existed at the time of trial

but was unknown to the plaintiff.

Our Supreme Court’s decision in Taborsky is no more

helpful to the respondent. In that case, the court reversed

the judgment of the trial court, which had denied a

petition for a new criminal trial on the ground of newly

discovered evidence bearing on the competency of a

key state’s witness in a murder trial. Taborsky v. State,

supra, 142 Conn. 621, 624–29, 634. In concluding that

the trial court had erred in denying the petition, our

Supreme Court noted that there was evidence at the

hearing on the petition establishing that the witness’

mental disability, the extent of which was not known

to the petitioner until shortly after trial, had existed

prior to and during the pendency of the petitioner’s

trial and was therefore evidence likely to bring about a

different result in a new trial. Id., 628–33. In considering

whether evidence of the witness’ competency would

be admissible and relevant to the issue of the witness’

credibility in a new trial, in the event that the witness

was unavailable to testify and transcripts of the witness’

prior testimony were offered; id., 624; the court observed

that, ‘‘since a condition of mental [disability] is always

a more or less continuous one, it would be proper, in

order to ascertain the fact of its existence at a certain

time, to consider its existence at a subsequent time.’’

(Emphasis added.) Id., 629–30. Furthermore, although

the court acknowledged that a new trial ordinarily will

not be granted on the ground of impeachment evidence,

it concluded that the impeachment evidence in Taborsky

went ‘‘to the very sanity of the key witness, without whose

evidence the accused could not have been convicted.’’

Id., 632.

Thus, the respondent’s reliance on Taborsky as standing for the proposition that newly discovered evidence

need not be predicated on facts existing at the time of

trial is misplaced. The decision makes clear that the

petitioner in that case was granted a new trial because

the discovery of new evidence bearing on the competency of a crucial state’s witness called into question

the veracity of the witness’ testimony against the petitioner at the time of the original trial. The petitioner in

that case did not merely allege a change in the witness’

competency subsequent to the trial and unrelated to the

veracity of that witness at the time of the original trial.

In sum, our case law, including the authorities relied

upon by the respondent, plainly establish that, for purposes of seeking a new trial on the ground of newly

discovered evidence, the evidence must be offered to

prove facts that existed or events that occurred at the

time of the original proceeding. This requirement helps

to ensure that a petition for a new trial on the basis of

newly discovered evidence is not used to undermine

the finality of judgments. As our appellate courts have
observed, the standard a party must satisfy to obtain a

new trial is ‘‘strict and is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final, and should not be

disturbed by posttrial [proceedings] except for a compelling reason.’’ (Internal quotation marks omitted.)

Jones v. State, 328 Conn. 84, 92–93, 177 A.3d 534 (2018);

see also Carter v. State, 159 Conn. App. 209, 222–23,

122 A.3d 720, cert. denied, 319 Conn. 930, 125 A.3d 204

(2015). ‘‘There must be an end of litigation, and for that

reason the rules governing new trials should be strictly

adhered to.’’ (Internal quotation marks omitted.) Gonirenki v. American Steel & Wire Co., 106 Conn. 1, 12,

137 A. 26 (1927); see also Lancaster v. Bank of New

York, 147 Conn. 566, 578, 164 A.2d 392 (1960) (without

rule limiting right to new trial on basis of new evidence

merely affecting witness’s credibility, ‘‘there might

never be an end to litigation’’ (internal quotation marks

omitted)). ‘‘Finality of litigation is essential so that parties may rely on judgments in ordering their private

affairs and so that the moral force of court judgments

will not be undermined. The law favors finality of judgments . . . .’’ (Internal quotation marks omitted.) U.S.

Bank, National Assn. v. Mamudi, 197 Conn. App. 31,

48, 231 A.3d 297, cert. denied, 335 Conn 921, 231 A.3d

1169 (2020).

This principle of law is especially important in child

protection matters. As Judge Taylor aptly observed, if

a parent’s allegation of a change in circumstances after

a judgment is rendered is a sufficient basis for a new

trial, a parent could prevent a child from achieving

permanency and stability indefinitely. ‘‘Time is of the

essence in child custody cases. . . . This furthers the

express public policy of this state to provide all of its

children a safe, stable nurturing environment. . . .

When the child whose interest is to be protected is

very young, delay in adjudication imposes a particularly

serious cost on governmental functioning.’’ (Citations

omitted; internal quotation marks omitted.) In re Juvenile Appeal, 187 Conn. 431, 439–40, 446 A.2d 808 (1982);

see also In re Davonta V., 285 Conn. 483, 494, 940 A.2d

733 (2008) (our appellate cases have ‘‘noted consistently

the importance of permanency in children’s lives’’

(internal quotation marks omitted)). ‘‘There is little that

can be as detrimental to a child’s sound development

as uncertainty . . . especially when such uncertainty

is prolonged.’’ Lehman v. Lycoming County Children’s

Services Agency, 458 U.S. 502, 513–14, 102 S. Ct. 3231,

73 L. Ed. 2d 928 (1982). Thus, a ‘‘[s]tate’s interest in

finality is unusually strong’’ with respect to disputes

involving the termination of parental rights. Id., 513.

Although the respondent acknowledges that the law

favors finality of litigation, she argues that ‘‘the principle

must yield on occasion when it appears that its application will result in a miscarriage of justice’’ and that

the circumstances alleged in her petition warrant the
exercise of the trial court’s equitable powers.12 We

acknowledge that ‘‘[a] petition for a new trial under

§ 52-270 is a proceeding essentially equitable in nature’’;

(internal quotation marks omitted) Jacobs v. Fazzano,

59 Conn. App. 716, 722, 757 A.2d 1215 (2000); and ‘‘provides a critical procedural mechanism for remedying

an injustice.’’ (Internal quotation marks omitted.)

Mitchell v. State, 338 Conn. 66, 74, 257 A.3d 259 (2021).

That said, the grounds that may be asserted to support

a petition for a new trial are circumscribed by statute.

See Black v. Universal C.I.T. Credit Corp., 150 Conn.

188, 192, 187 A.2d 243 (1962) (petition for new trial ‘‘is

authorized, and its scope is limited, by the terms of the

statute’’). The party seeking a new trial ‘‘has the burden

of proving by a preponderance of the evidence that [he

or she] is entitled to a new trial on the grounds claimed.’’

(Internal quotation marks omitted.) Jacobs v. Fazzano,

supra, 723. Accordingly, the fundamental question before

the trial court on the commissioner’s motion to strike

in this appeal was whether the facts alleged in the

respondent’s petition stated a claim for a new trial pursuant to § 52-270. Because the court’s orders approving

new permanency plans did not occur until after the

respondent’s trial, they were not facts in existence at

the time of her trial and, consequently, did not constitute newly discovered evidence. These allegations thus

failed to satisfy the threshold requirement of stating a

claim upon which equitable relief may be granted.

II

For the same reasons discussed in part I of this opinion, the respondent’s claim that she is entitled to a new

trial for the discovery of new evidence establishing that

she rehabilitated to a greater extent than what the trial

court was led to believe at her trial also fails. In her

petition for a new trial, the respondent alleged that,

following her release from prison on June 11, 2020,

which was approximately seven months after the court

terminated her parental rights, she found gainful employment, graduated from intensive outpatient substance

abuse treatment, finished relapse prevention therapy,

and engaged in counseling to address her mental health

issues. She also alleged that she had not interfered with

Chester C.’s effective parenting of the children and that

she had ‘‘achieved a degree of personal rehabilitation

sufficient to encourage the belief that she could resume

a responsible position in her children’s lives.’’ On appeal,

she argues that the court improperly struck her petition

as to this claim because it alleges newly discovered

evidence that establishes that the termination of her

parental rights was not necessary to achieve a compelling government interest and, therefore, is evidence likely

to produce a different result at a new trial.

Like the respondent’s allegations relating to the orders

approving new permanency plans with respect to Chester C., these allegations concern events that occurred
after the respondent’s trial, which concluded on August

16, 2019. If anything, these allegations are but a change

in circumstances and, consequently, are not legally sufficient to support a petition for a new trial based on

newly discovered evidence under § 52-270.

For the foregoing reasons, we conclude that the court

properly granted the motion to strike the respondent’s

petition for a new trial as it failed to state a claim on

which relief could be granted.

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.

** June 8, 2022, the date this decision was released as a slip opinion, is

the operative date for all substantive and procedural purposes.

1 See In re Madison C., 201 Conn. App. 184, 241 A.3d 756, cert. denied,

335 Conn. 985, 242 A.3d 480 (2020).

2 The respondent filed a consolidated petition for a new trial with respect to

the judgments terminating her parental rights as to the three minor children.

3 General Statutes § 52-270 (a) provides: ‘‘The Superior Court may grant

a new trial of any action that may come before it, for mispleading, the

discovery of new evidence or want of actual notice of the action to any

defendant or of a reasonable opportunity to appear and defend, when a just

defense in whole or part existed, or the want of actual notice to any plaintiff

of the entry of a nonsuit for failure to appear at trial or dismissal for

failure to prosecute with reasonable diligence, or for other reasonable cause,

according to the usual rules in such cases. The judges of the Superior Court

may in addition provide by rule for the granting of new trials upon prompt

request in cases where the parties or their counsel have not adequately

protected their rights during the original trial of an action.’’

4 The attorneys for all three minor children, the guardians ad litem for

Ryan and Andrew, and counsel for the foster mother to Ryan submitted

statements, pursuant to Practice Book § 79-6 (c), adopting the commissioner’s brief on appeal.

5 The respondent had ‘‘a long history of substance abuse, specifically

with heroin, and ha[d] been on methadone maintenance intermittently since

2012.’’In re Madison C., supra, 201 Conn. App. 187. Her treatment ‘‘oscillated,

with periods of sobriety interrupted by intense relapses.’’ (Internal quotation

marks omitted.) Id. As a result of the respondent’s substance abuse issues,

she had many interactions with the criminal justice system. Id. In April,

2017, she was arrested and charged with risk of injury to a child in connection

with the domestic dispute that led to the removal of Madison and Ryan

from her care. Id. She ultimately was convicted of risk of injury to a child.

Id., 188.

6 The respondent was incarcerated at the time of the termination of parental rights trial as a result of her conviction for risk of injury to a child. See

footnote 5 of this opinion.

7 During the pendency of the trial, on August 14, 2019, the commissioner

also filed a motion to review Andrew’s permanency plan, with the goal of

reuniting Andrew with Chester C. In addition, when the termination of

parental rights petitions against Chester C. were withdrawn on August 16,

the court ordered specific steps for Chester C. and canvassed him with

respect to that order.

8 The respondent also alleged that termination of her ‘‘parental rights was

or may not have been necessary for the . . . commissioner to continue

receiving federal funding pursuant to the Adoption and Safe Families Act

of 1997, Pub. L. No. 105-89, 111 Stat. 2115.’’ In its memorandum of decision,

the court, C. Taylor, J, concluded that this basis for a new trial was legally

insufficient because the respondent had not alleged any newly discovered

evidence in her petition as to this issue. The respondent does not challenge

that ruling on appeal.

9 The court approved new permanency plans for Madison and Ryan on

January 2, 2020, and a new permanency plan for Andrew on January 23, 2020.
10 The intervening foster parents of Andrew also filed a motion to strike

the respondent’s petition on the day of the hearing.

11 On July 30, 2021, this court sua sponte ordered the parties to file memoranda of law giving reasons why the original appeal should not be dismissed

on the ground that judgment had not been rendered on the stricken petition

for a new trial. Thereafter, the respondent moved the trial court for judgment

on the stricken complaint. On August 11, 2021, Judge Taylor granted that

motion and rendered judgment on the stricken petition. The respondent

subsequently withdrew her original appeal and filed the present appeal on

August 30, 2021.

12 The respondent’s assertion that she is entitled to equitable relief from

the judgment terminating her parental rights is predicated, in part, on her

contention that her direct appeal from that judgment was a ‘‘per se’’ inadequate remedy. (Emphasis in original.) That contention lacks merit. In her

direct appeal, the respondent claimed that she was deprived of her due

process rights because termination of her parental rights was not the least

restrictive means necessary to achieve a compelling state interest once the

commissioner withdrew the termination petitions as to Chester C. In re

Madison C., supra, 201 Conn. App. 191. This court declined to review her

constitutional claim because she failed to raise it at trial and had failed to

create an adequate record for review under Golding. Id., 190, 194. It was

not impossible for her to have created such a record, however. The respondent could have availed herself of appellate review of her constitutional

claim by raising it in the termination trial or ensuring the record was adequate

for review under Golding.