******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
IN RE ARIANA S.*

(AC 37652)

Gruendel, Alvord and Dupont, Js.

Argued May 26—officially released August 26, 2015**

(Appeal from Superior Court, judicial district of New

Britain, Juvenile Matters, Cohn, J.)

Joshua Michtom, assistant public defender, for the

appellant (respondent father).

Tammy Nguyen-O’Dowd, assistant attorney general,

with whom, on the brief, were George Jepsen, attorney

general, Gregory T. D’Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Robert W. Lewonka, for the minor child.
Opinion

ALVORD, J. The respondent father appeals from the

trial court’s denial of his motion to open the judgment

terminating his parentalrights to his minor child, Ariana

S.1 On appeal, he claims that the court abused its discretion in rejecting his claim that notice by publication in

the Miami Herald was inadequate, constituting reasonable cause preventing his participation in the termination trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the respondent’s appeal. The child was born in

2005. In November, 2012, she was adjudicated neglected

and committed to the custody of the Commissioner of

Children and Families (commissioner).2 On July 2, 2013,

the petitioner filed a petition to terminate the respondent’s parental rights as to the child. On July 10, 2013,

the petitioner filed a motion for order of notice by

publication.3In that motion, the petitioner listed as the

respondent’s last residence ‘‘an unknown address in

Florida.’’ The motion stated that publication of the

notice in the Miami Herald ‘‘is considered most likely

to come to his attention.’’ The court had before it an

affidavit detailing the efforts made by the Department

of Children and Families (department) to locate the

respondent. The affidavit indicated that the child’s

mother had informed the department that the respondent resided in Florida, but she could not provide the

department with a specific address. The department

sent a certified letter to a Haines City, Florida address

obtained from a Lexis/Nexis search, but the letter was

returned as undeliverable. The department additionally

conducted: a LocatePLUS search, an Anywho.com

search, and searches of the Connecticut Department of

Correction, Department of Motor Vehicles, and Judicial

Branch records. On July 10, 2013, the court granted the

petitioner’s motion for order of notice by publication,

and notice of the petition for the termination of the

respondent’s parentalrights was published in the Miami

Herald on July 12, 2013. The notice indicated that a

court date for the termination petition was scheduled

for August 7, 2013. On that date, the respondent did

not appear, publication was confirmed, and the court

entered a default judgment against him for failure to

appear.

A trial on the petition was held on March 26 and 27,

2014. In a memorandum of decision filed on July 23,

2014, the court, Elgo, J., terminated the respondent’s

parental rights as to the child after finding that the

department had made reasonable efforts to locate him,4

and that he was unable and unwilling to benefit from

reunification efforts. The court found that the petitioner

had proven the termination grounds of abandonment

and no parent-child relationship. See General Statutes

§ 17a-112 (j) (3) (A) and (D). The court issued written

findings as to the statutory factors; General Statutes
§ 17a-112 (k); and concluded that termination of the

respondent’s parental rights was in the child’s best

interest.

The respondent maintains that he did not learn of

the termination of parental rights proceedings until his

return to Connecticut in July, 2014. On October 8, 2014,

the respondent filed a motion to open the judgment

terminating his parentalrights. In his motion, he argued,

inter alia, that he was prevented from appearing at the

proceedings due to reasonable cause. He claimed that

the abode service of the motion for an order of temporary custody and neglect petition at the Middletown

address; see footnote 2 of this opinion; was insufficient,

as he was living in Florida at that time. He further

claimed that publication of the termination notice in

the Miami Herald was insufficient because he had never

resided in Miami-Dade county and, thus, publication in

that location had ‘‘no chance’’ of placing him on notice.

He also claimed that viable defenses to both grounds

for termination, abandonment and no ongoing parentchild relationship, were available to him at the time of

the proceedings.

The petitioner filed an objection to the respondent’s

motion to open the judgment, in which the petitioner

argued that the respondent had failed to allege that

opening the judgment would be in the best interest of

the child, and that he had failed to show both that he

had a good defense to the termination petition at the

time of judgment and that reasonable cause prevented

him from raising it. The respondent filed a reply in

which he argued, inter alia, that it would be in the

child’s best interest to open the judgment. On December

18, 2014, the court held a hearing, during which the

respondent and the department’s social worker testified. The sole subject of the hearing was the respondent’s claim that reasonable cause prevented him from

appearing.5

In its January 8, 2015 ruling, the court, Cohn,

J., denied the respondent’s motion to open the judgment, concluding that he had ‘‘not satisfied the court

that he was not properly served,’’ and, therefore, that

he had ‘‘failed to demonstrate that he was prevented,

at the [termination of parental rights] trial, from presenting a defense . . . .’’ This appeal followed. Additional facts will be set forth as necessary.

We begin with our standard of review. ‘‘Our review

of a court’s denial of a motion to open . . . is well

settled. We do not undertake a plenary review of the

merits of a decision of the trial court to grant or to

deny a motion to open a judgment. . . . 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 its action. . . . The
manner in which [this] discretion is exercised will not

be disturbed so long as the court could reasonably

conclude as it did.’’ In re Zen T., 151 Conn. App. 724,

728–29, 95 A.3d 1258, cert. denied, 314 Conn. 911, 100

A.3d 403 (2014), cert. denied sub nom. Heather S. v.

Connecticut Commissioner of Children & Families,

U.S. , 135 S. Ct. 2326, 191 L. Ed. 2d 991 (2015).

We next set forth the applicable law governing a

motion to open a judgment terminating parental rights.

‘‘To open a default judgment, a moving party must show

‘reasonable cause, or that a good cause of action or

defense in whole or in part existed at the time of the

rendition of the judgment or the passage of the decree,

and that the plaintiff or defendant was prevented by

mistake, accident or otherreasonable cause from prosecuting the action or making the defense.’ General Statutes § 52-212 (a). Furthermore, § 52-212 (b) requires

that ‘[t]he complaint or written motion shall be verified

by the oath of the complainant or his attorney, shall

state in general terms the nature of the claim or defense

and shall particularly set forth the reason why the plaintiff or defendant failed to appear.’’ In re Ilyssa G., 105

Conn. App. 41, 45, 936 A.2d 674 (2007), cert. denied,

285 Conn. 918, 943 A.2d 475 (2008). ‘‘It is thus clear

that to obtain relief from a judgment rendered after a

default, two things must concur. There must be a showing that (1) a good defense, the nature of which must

be set forth, existed at the time judgment was rendered,

and (2) the party seeking to set aside the judgment

was prevented from making that defense because of

mistake, accident or other reasonable cause. . . .

Since the conjunctive and meaning in addition to is

employed between the parts of the two prong test, both

tests must be met. . . . As to a termination of parental

rights judgment, before granting a motion to open, the

court must also consider the best interest of the child.

General Statutes § 45a-719.’’6

(Citation omitted; internal

quotation marks omitted.) Id., 45–46.

The respondent’s sole claim on appeal concerns the

adequacy of the notice provided by publication in the

Miami Herald. He does not claim that constructive

notice by publication was inappropriate. Rather, he

argues that this constructive notice should have been

published in a newspaper having substantial circulation

‘‘in the Orlando area,’’ because the only information

the department had as to his location was two former

addresses, one in Kissimmee and the other in Haines

City.7 He further argues that the court erred in relying

upon the reputation of the Miami Herald, its statewide

reach, and the respondent’s transient status in concluding that the publication in the Miami Herald was adequate, when there was no indication that the respondent

had lived in the Miami area or that the Miami Herald

‘‘has substantial circulation in or near the Orlando

area . . . .’’
‘‘Notice by publication, although sometimes necessary, is not the preferred method for assuring full participation in so significant an impairment of

constitutionally protected parental rights. . . . Notice

is not a mere perfunctory act in order to satisfy the

technicalities of a statute, but has, as its basis, constitutional dimensions. An elementary and fundamental

requirement of due process in any proceeding which is

to be accorded finality is notice reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of the action and afford them

an opportunity to present their objections.’’ (Citation

omitted; internal quotation marks omitted.) In re Baby

Girl B., 224 Conn. 263, 295–96, 618 A.2d 1 (1992). General Statutes § 45a-716 (c) provides for notice by publication of a hearing forthe termination of parentalrights.

Section 45a-716 (c) provides in relevant part: ‘‘If the

address of any person entitled to personal service or

service at the person’s usual place of abode is unknown,

or if personal service or service at the person’s usual

place of abode cannot be reasonably effected within

the state, or if any person enumerated in subsection

(b) of this section is out of the state, a judge or the

clerk of the court shall order notice to be given by

registered or certified mail, return receipt requested,

or by publication at least ten days before the date of the

hearing. Any such publication shall be in a newspaper of

general circulation in the place of the last-known

address of the person to be notified, whether within or

without this state, or, if no such address is known, in

the place where the petition has been filed.’’

The United States Supreme Court has also provided

general principles of adequate notice. ‘‘The notice must

be of such nature as reasonably to convey the required

information . . . and it must afford a reasonable time

for those interested to make their appearance . . . .

But if with due regard forthe practicalities and peculiarities of the case these conditions are reasonably met,

the constitutional requirements are satisfied. . . .

‘‘But when notice is a person’s due, process which is

a mere gesture is not due process. The means employed

must be such as one desirous of actually informing the

absentee might reasonably adopt to accomplish it. The

reasonableness and hence the constitutional validity of

any chosen method may be defended on the ground

that it is in itself reasonably certain to inform those

affected . . . or, where conditions do not reasonably

permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the

feasible and customary substitutes.’’ (Citations omitted.) Mullane v. Central Hanover Bank & Trust Co.,

Trustee, 339 U.S. 306, 314–15, 70 S. Ct. 652, 94 L. Ed.

865 (1950). Notice by publication is adequate ‘‘where

it is not reasonably possible or practicable to give more

adequate warning.’’ Id., 317; see Mennonite Board of
Missions v. Adams, 462 U.S. 791, 799, 103 S. Ct. 2706,

77 L. Ed. 2d 180 (1983) (‘‘use of . . . less reliable forms

of notice [including notice by publication] is notreasonable where . . . an inexpensive and efficient mechanism such as mail service is available’’ [internal

quotation marks omitted]).

The respondent, citing Mullane and Mennonite

Board of Missions, argues that ‘‘notice must be tailored

to the circumstances of the case [and] the trial court’s

ruling would make sense only if nothing had been

known about the respondent’s whereabouts.’’ His claim

centers on the traveling distance between the city of

Miami and the cities of Kissimmee and Haines City.

Under the facts of this case, we disagree that the court

abused its discretion in denying the motion to open

after determining that it could not conclude that the

department ‘‘failed to choose an adequate means to

give notice.’’

The respondent relies heavily on the department’s

knowledge of two addresses, one in Haines City and

the other in Kissimmee. He points to the department’s

efforts to contact him at a Haines City address, which

was obtained from a Lexis/Nexis search. The certified

letter sent there, however, was returned as undeliverable, and, thus, the department worker’s testimony was

that they were never able to confirm that anyone with

the respondent’s name actually lived at that address.

With regard to the Kissimmee address that the department had in its file, the phone number listed for that

address ‘‘was not taking calls.’’8 The respondent does

not take issue with the court’s finding that the respondent had not lived in Kissimmee since 2011. Thus,

although the respondent argues that the fact that the

department was aware of prior addresses in Kissimmee

and Haines City required, in this case, the department

to publish notice ‘‘in the Orlando area,’’ the court recognized that the calculated efforts to reach the respondent

at either of those two addresses, one of which had

never been confirmed, were unsuccessful. The court

noted that the respondent had lived in different locations while the department was attempting to locate

him and found that the respondent was not living at

any of those addresses at the time the department

attempted to contact him at those locations.9

The court’s conclusion that the notice provided to

the respondent was reasonable finds further support in

the testimony of the department worker. Her testimony

confirmed the information in her affidavit that the

child’s mother had mentioned to herthat the respondent

was residing in Florida, but that she did not have a

specific address for him. The department worker further testified that the general practice is to publish

notice in the Miami Herald when the department has

no confirmed address but has information that the person is living in Florida. She stated that this practice
was based on the Miami Herald having the widest circulation in Florida, and the Miami-Dade metropolitan area

being the largest metropolitan area in the state.

To the extent that the respondent relies specifically

upon the alleged failure to comply with § 45a-716 (c),

we disagree that the court abused its discretion in concluding that the respondent failed to demonstrate that

he was improperly served. Considering that the efforts

to reach the respondent at eitherthe Kissimmee address

or the Haines City address were unsuccessful, the

department relied on the only other information it had

as to the respondent’s whereabouts, which consisted

of information obtained from the child’s mother that

the respondent was somewhere in Florida. Therefore,

under the factual circumstances of this case, constructive notice by publication in the newspaper presented

as having the widest circulation in Florida was not inadequate.

We cannot conclude that the court abused its discretion in determining that the respondent had not met

his burden of demonstrating reasonable cause that prevented him from presenting a defense to the termination

petition. He failed to prove that publication in an

Orlando area newspaper, the locality where two calculated notification efforts had failed, would have provided him with notice of the termination proceedings.10

The respondent presented no evidence at the hearing

that he would have seen the notice had the department

considered the addresses in Kissimmee and Haines City,

which were the subject of its failed calculated efforts

to contact him, as last-known addresses, and published

notice in a newspaper with ‘‘substantial circulation in

or near the Orlando area . . . .’’11 ‘‘On a motion to open

the moving party must not only ‘allege,’ but must also

make a ‘showing’ sufficient to satisfy the requirements

of § 52-212.’’ Pantlin & Chananie Development Corp.

v. Hartford Cement & Building Supply Co., 196 Conn.

233, 241, 492 A.2d 159 (1985). Moreover, the respondent

does not argue that publication should have been made

in the place where the termination petition was filed,

which would be New Britain, as § 45a-716 (c) directs

in cases in which no address is known.

Considering that the department’s efforts to reach

the respondent by telephone at an address it retained

in its file and by certified mail at a potential address it

obtained from a Lexis/Nexis search proved unsuccessful, and also taking into account the information provided by the child’s mother that the respondent

generally was living in Florida, we cannot conclude that

the trial court abused its discretion in determining that

the respondent did not carry his burden of proving

that reasonable cause in the form of inadequate notice

prevented him from presenting a defense to the termination petition.

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.

** August 26, 2015, the date that this decision was released as a slip

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

1 The parental rights of Ariana’s mother were also terminated. Because

she is not a party to this appeal, we refer in this opinion to the respondent

father as the respondent.

2 On August 28, 2012, the petitioner filed a motion for order of temporary

custody and a neglect petition. At the hearing on the motion for the order

of temporary custody on September 7, 2012, the court confirmed abode

service for the respondent at an address in Middletown. Abode service at

the same address in Middletown was again confirmed at the plea hearing

on the neglect petition on October 4, 2012. At that hearing, the respondent

was defaulted for failure to appear. The service was made at that address

based on a search of motor vehicle records, which resulted in information

indicating that the respondent had registered a motor vehicle at that address.

3 The petitioner had filed a previous motion for order of notice by publication on July 2, 2013. The accompanying affidavit stated that ‘‘[m]other does

not have any information as to [the respondent’s] location . . . .’’ That

motion was denied by the court, which noted that the affidavit needed to

provide information concerning why the publication was to be made in

Florida. The petitioner then filed the second motion on July 10, 2013, with

an updated affidavit that included the information received from the child’s

mother, who told the Department of Children and Families that the respondent resided in Florida but that she could not provide a specific address.

4 The court reiterated the efforts listed on the affidavit filed on July 10,

2013.

5 On November 13, 2014, the parties appeared before the court, and the

court at that time proposed that the reasonable cause prong be considered

first. If the respondent was able to establish reasonable cause, then the

remainder of the prongs would be considered. The parties did not object

to proceeding in this manner.

6 General Statutes § 45a-719 provides in relevant part: ‘‘The court may

grant a motion to open or set aside a judgment terminating parental rights

pursuant to section 52-212 or 52-212a or pursuant to common law or may

grant a petition for a new trial on the issue of the termination of parental

rights, provided the court shall consider the best interest of the child, except

that no such motion or petition may be granted if a final decree of adoption

has been issued prior to the filing of any such motion or petition. . . . For

the purpose of this section, ‘best interest of the child’ shall include, but not

be limited to, a consideration of the age of the child, the nature of the

relationship of the child with the caretaker of the child, the length of time

the child has been in the custody of the caretaker, the nature of the relationship of the child with the birth parent, the length of time the child has been

in the custody of the birth parent, any relationship that may exist between

the child and siblings or other children in the caretaker’s household, and

the psychological and medical needs of the child. The determination of the

best interest of the child shall not be based on a consideration of the socioeconomic status of the birth parent or the caretaker.’’

7 The petitioner argues that the respondent ‘‘provided absolutely no evidence at the hearing that publication in a newspaper within the Orlando

area would have provided him notice of the proceedings and changed the

outcome of this case.’’

8 We note that the attempt to reach the respondent by phone at the

Kissimmee address was not listed in the affidavit as one of the efforts made

to locate the respondent.

9 The court made the following additional factual findings concerning the

respondent’s location. The respondent lived in Haines City from 2009 to

2010. From 2010 to 2011, the respondent lived in Kissimmee. The child and

her mother lived with the respondent in Kissimmee for part of 2011, but by

the later part of 2011, the child and her mother had moved to Connecticut.

From 2012 to 2013, the respondent lived in Winter Haven, Florida, and on

July 19, 2014, the respondent returned to Connecticut.

10 In his appellate brief, the respondent relies heavily on General Statutes

§ 1-2, which provides in relevant part: ‘‘Whenever notice of any action or

other proceeding is required to be given by publication in a newspaper,
either by statute or order of court, the newspaper selected for that purpose,

unless otherwise expressly prescribed, shall be one having a substantial

circulation in the town in which at least one of the parties, for whose benefit

such notice is given, resides.’’ He argues that § 1-2 clarifies the requirement

contained in § 45a-716 (c) that ‘‘publication shall be in a newspaper of

general circulation in the place of the last-known address of the person to

be notified . . . .’’ Thus, he argues that the department should have published the notice in a newspaper having ‘‘substantial circulation’’ in the town

in which he last resided.

We conclude that this argument is unavailing for the same reasons that

the respondent’s argument fails under his construction of § 45a-716 (c). The

respondent has not demonstrated that the court abused its discretion in

concluding that he failed to prove that reasonable cause prevented him

from presenting a defense to the termination petition. We also note, as the

petitioner argues, that the respondent did not raise § 1-2 to the trial court,

and, thus, the court had no opportunity to consider its applicability to

this situation in light of the undisputed applicability of § 45a-716 (c), the

provisions of which specifically govern notice by publication of termination

of parental rights proceedings.

11 See footnote 7 of this opinion.