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

beginning of this opinion is the date the opinion 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.

This opinion is subject to revisions and editorial

changes, not of a substantive nature, and corrections

of a technical nature prior to publication in the

Connecticut Law Journal. ****************************************************************
IN RE NAOMI W.

(AC 44413)

Elgo, Suarez and Devlin, Js.

Syllabus

The respondent mother appealed to this court, challenging the order of the

trial court that permitted her minor child, N, to undergo a nonemergency

surgical procedure, despite the mother’s objection to it on religious

grounds. The mother claimed that the trial court violated her constitutional right to direct the health care decisions and religious upbringing

of N. After N had been adjudicated uncared for and committed to the

care and custody of the Commissioner of Children and Families, she

was examined by a physician in 2017 who strongly recommended that

she have the surgery. In February, 2020, N’s attorney filed a motion on

her behalf, seeking the trial court’s authorization for the surgery, which

the commissioner joined. N, who was seventeen years old at the time,

sought to expedite the surgery and to complete her recovery before she

entered college. Although a hearing on N’s motion had been scheduled

for February, 2020, the motion was not heard until October, 2020, in

part because of the COVID-19 pandemic. The trial court determined that

it was in N’s best interest that the court grant the motion, and the surgery

was scheduled for January 13, 2021. While her appeal was pending, the

mother filed a motion to stay the trial court’s order, which the court

denied after a hearing on January 4, 2021. This court then considered

the mother’s emergency motion for expedited review of the trial court’s

order but denied the relief requested on January 11, 2021, stating that

there was then no stay that would prevent the surgery from going

forward. After N underwent the surgery on January 13, 2021, the commissioner filed a motion with this court to dismiss the mother’s appeal on

the ground that it was moot. This court denied the motion without

prejudice to the parties’ addressing the mootness issue in their briefs.

On appeal, the mother claimed that, although this court could grant her

no practical relief, her appeal came within the exception to the mootness

doctrine of Loisel v. Rowe (233 Conn. 370) for claims that are capable

of repetition yet evade review. Held that the respondent mother’s appeal

was dismissed as moot, there being no practical relief that could be

afforded to her: the mother could not satisfy the requirement of Loisel

that the challenged action of the trial court, or the effect of the challenged

action, by its very nature was of a limited duration such that there

was a strong likelihood that the substantial majority of cases raising a

question about its validity would become moot before appellate litigation

could be concluded, as appellate rules provide wide-ranging authority

to expedite the appellate process, and it was unlikely that the majority

of cases involving parental objection to a necessary but nonemergency

medical procedure would encounter a delay in requesting court involvement, a delay of almost nine months before adjudication and a desire

to expedite the procedure on the basis of educational plans; moreover,

notwithstanding the mother’s contention that all medical treatment disputes are inherently time limited such that they would always escape

appellate review, such review has been conducted in scores of cases

without resort to the capable of repetition yet evading review exception

to the mootness doctrine.

Argued May 27—officially released July 22, 2021*

Procedural History

Petition by the Commissioner of Children of Families

to adjudicate the respondents’ minor child neglected

and uncared for, brought to the Superior Court in the

judicial district of New Haven, Juvenile Matters, and

tried to the court, Marcus, J.; judgment adjudicating

the minor child uncared for and committing the minor

child to the custody of the petitioner; thereafter, the
court granted the minor child’s motion for authorization

of a certain medical procedure, and the respondent

mother appealed to this court; subsequently, the court,

Marcus, J., denied the respondent mother’s motion for

a stay; thereafter, this court granted the respondent

mother’s motion for review and denied the relief

requested; subsequently, this court denied without prejudice the petitioner’s motion to dismiss the appeal.

Appeal dismissed.

Benjamin M. Wattenmaker, for the appellant

(respondent mother).

Evan O’Roark, assistant attorney general, with

whom, on the brief, were William Tong, attorney general, Clare E. Kindall, solicitor general, and Sara

Nadim, assistant attorney general, for the appellee

(petitioner).
Opinion

DEVLIN, J. This case concerns the efforts of Naomi

W. (Naomi), a child in the custody of the petitioner,

the Commissioner of Children of Families (commissioner), to undergo a surgical procedure to correct

severe curvature of her spine. Following a hearing, the

trial court authorized the surgery, and the respondent

mother (respondent), who objected to the surgery, filed

the present appeal. On appeal, she claims, for the first

time, that the trial court violated her fundamental right

to direct the health care decisions and religious upbringing of her child by allowing the commissioner to consent

to Naomi’s nonemergency surgery over the respondent’s religious objection. The respondent unsuccessfully sought a stay of the trial court’s order, and the

commissioner reported that, on January 13, 2021,

Naomi successfully underwent the surgery. Because

this court can no longer grant any practical relief to

the parties and the case does not meet the criteria for

the ‘‘capable of repetition, yet evading review’’ exception to the mootness doctrine, we dismiss the appeal

as moot.

The record reflects the following factual and procedural history. On August 9, 2017, a motion for an order

of temporary custody was granted, and Naomi was

placed in the temporary custody of the commissioner.

Subsequently, on February 22, 2018, Naomi was adjudicated uncared for and committed to the custody of the

commissioner, who was named her guardian. Thereafter, the court approved a permanency plan that called

for reunification of Naomi with the respondent. Following the entry of the order of temporary custody, Naomi

and her younger sister were placed in the foster care

of their maternal cousin.

On February 3, 2020, counsel for Naomi filed a pleading titled ‘‘Child’s Motion for Medical Procedure.’’ The

motion provided in part: ‘‘Naomi . . . suffers from scoliosis, and the treating physician has recommended that

she undergo surgery to correct the severe curvature of

her spine. . . . Naomi . . . is requesting the procedure, which is recommended by her treating physicians.

. . . The child’s parent . . . is opposed to the procedure.’’ The motion sought a court order granting Naomi

permission to obtain the procedure.

A status report issued by the Department of Children

and Families (department), dated May 16, 2018,

reflected that ‘‘Naomi was seen for a well-child exam

on [November 14, 2017]. Naomi was referred to Yale

Medical Pediatric Specialties for her back. . . . Naomi

was examined by Dr. Brian Smith, who reported she has

significant [s]coliosis. Dr. Smith strongly recommended

surgery. [The respondent] . . . was in attendance at

the appointment. Dr. Smith discussed . . . the benefits

and risks of the surgery. [The respondent] is [not] keen
on Naomi having the surgery.’’ On January 15, 2020, the

commissioner filed with the court a ‘‘Study in Support

of Permanency Plan.’’ As relevant to Naomi’s scoliosis

condition, the study stated: ‘‘[Naomi] was seen by Dr.

Arya Varthi . . . of the Yale-New Haven Spine Group.

Naomi has scoliosis and is in need of surgery to correct

the severe curvature of her spine. Her back is 75 degrees

curved which is considered extreme. Surgery is typically recommended for any person whose back is

curved greater than 45 degrees.’’ The study stated that

the respondent remained opposed to the procedure.

Following Naomi’s filing of her motion for a court

order authorizing the surgery, the department’s medical

review board (board) examined her case and recommended surgical correction of Naomi’s scoliosis. The

board’s report, dated February 19, 2020, stated that a

hearing on Naomi’s motion was scheduled for February

22, 2020. The report further stated that ‘‘Naomi and

her biological father agree with surgical intervention,

however, [the respondent] oppose[s] surgery based on

religious beliefs. . . . Of note, [Naomi] was referred

for bracing in 2018, however, [the respondent] did not

believe she needed it at that time.’’

Although Naomi’s motion initially was scheduled for

a hearing on February 22, 2020, the hearing did not

actually take place until October 26, 2020, almost nine

months after the motion was filed. It appears from our

review of the record that the delay was attributed, in

part, to the COVID-19 pandemic. The commissioner

joined in the motion and took the lead in arguing the

motion at the hearing. Among the witnesses at the hearing was Nicole M. Taylor, a physician and expert in

pediatric medicine, who testified that Naomi’s medical

issues did not present an emergency and were not lifethreatening. At the conclusion of the hearing, the court

granted the motion in an oral ruling. The court noted

that the surgery had been recommended since 2017,

and that it was in the best interest of Naomi for the

court to grant the motion.

On December 4, 2020, the respondent filed an appeal

of the order authorizing the surgery, claiming that the

trial court violated her constitutional rights in ordering

the surgery over her objection. On December 8, 2020,

she filed a motion to stay the order until her appeal

was resolved. Naomi’s attorney filed an objection to

the motion for a stay, asserting that Naomi had ‘‘filed

a motion requesting permission to obtain a medical

procedure to correct her severe scoliosis on February

3, 2020. [The respondent] objected, and a hearing was

scheduled for March 24, 2020. Because of the pandemic

and court closures, the surgery and the hearing were

postponed indefinitely. On October 26, 2020, a hearing

was held, and the court . . . granted the motion for a

medical procedure.’’ The surgery was scheduled to take

place on January 13, 2021. The trial court conducted a
hearing on the motion for a stay on December 22, 2020,

and, in a memorandum of decision dated January 4,

2021, denied the motion.

The respondent then filed, in this court, an emergency

motion for review of the order denying her motion for

a stay. This motion was dated January 8, 2021, stated

that the surgery was scheduled for January 13, 2021,

and requested this court to provide expedited review.

On January 11, 2021, this court considered the motion

for review and granted review but denied the requested

relief. This court’s order states: ‘‘There is currently no

stay that would prevent the surgery scheduled for January 13, 2021, from going forward.’’

On January 19, 2021, the commissioner filed a motion

to dismiss this appeal, asserting that the appeal is moot

because Naomi successfully underwent the surgery that

is the subject of the appeal. This court denied the motion

without prejudice to the parties addressing the mootness issue in their briefs. On appeal, the respondent

asserts that, although this court can grant her no practical relief, her claims fit within the ‘‘capable of repetition,

yet evading review’’ exception to the mootness doctrine. The commissioner continues to contend that the

appeal is moot and that the respondent’s claims do not

meet the requirements for the exception.

‘‘Mootness is a question of justiciability that must be

determined as a threshold matter because it implicates

[a] court’s subject matter jurisdiction. . . . [A]n actual

controversy must exist not only at the time the appeal

is taken, but also throughout the pendency of the

appeal. . . . When, during the pendency of an appeal,

events have occurred that preclude an appellate court

from granting any practical relief through its disposition

of the merits, a case has become moot.’’ (Citation omitted; internal quotation marks omitted.) Wendy V. v.

Santiago, 319 Conn. 540, 544–45, 125 A.3d 983 (2015).

‘‘In determining mootness, the dispositive question is

whether a successful appeal would benefit [the respondent] in any way.’’ (Internal quotation marks omitted.)

Id., 545.

‘‘To qualify under the capable of repetition, yet evading review exception, three requirements must be met.

First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited

duration so that there is a strong likelihood that the

substantial majority of cases raising a question about

its validity will become moot before appellate litigation

can be concluded. Second, there must be a reasonable

likelihood that the question presented in the pending

case will arise again in the future, and that it will affect

either the same complaining party or a reasonably identifiable group for whom the party can be said to act as

a surrogate. Third, the question must have some public

importance. Unless all three requirements are met, the

appeal must be dismissed as moot.’’ (Internal quotation
marks omitted.) Id., 545–46. Our Supreme Court first

articulated this three part test governing the application

of the capable of repetition, yet evading review exception in Loisel v. Rowe, 233 Conn. 370, 382–83, 660 A.2d

323 (1995).

Upon consideration of these three Loisel factors,

there can be little dispute that the issue of a parent’s

ability to direct the health care decisions and religious

upbringing of the parent’s child, who is in the custody

of the commissioner, is a matter of public importance.1

Further, we assume, without deciding, that there is a

reasonable likelihood that the question will arise again

affecting either the respondent or other parents for

whom the respondent can be said to act as a surrogate.

We conclude, however, that the respondent ‘‘cannot

satisfy the first Loisel factor, namely, that the challenged action, or the effect of the challenged action, is

by its very nature . . . of a limited duration so that

there is a strong likelihood that the substantial majority

of cases raising a question about its validity will become

moot before appellate litigation can be concluded.’’

(Internal quotation marks omitted.) In re Emma F., 315

Conn. 414, 425, 107 A.3d 947 (2015). The ‘‘capable of

repetition, yet evading review rule reflects the functionally insurmountable time constraints present in certain

types of disputes.’’ (Internal quotation marks omitted.)

Wallingford v. Dept. of Public Health, 262 Conn. 758,

770 n.12, 817 A.2d 644 (2003).

In evaluating whether a substantial majority of cases

raising the question posed in the present case would

become moot before appellate review could be completed, we find that several factors suggest that such

cases would not become moot. First, Naomi’s need for

surgery was strongly recommended in 2017, yet no

motion for court authorization for surgery was filed

until 2020. It is likely that such a delay would not occur

in a substantial majority of cases. Second, after Naomi

filed her motion for surgery, the court closings occasioned by the COVID-19 pandemic resulted in a delay

of almost nine months before the motion was heard.

Once the court considered the motion, the issues raised

therein were adjudicated in a one day hearing. It is

highly unlikely that, going forward, future cases will

encounter pandemic related delays of this sort. Third,

the trial court noted that, because Naomi was seventeen

years old and planning to attend college, it was

important for her to have the surgery and to complete

her recovery before entering college. It is not likely that

a substantial majority of cases will have this constraint.

In combination, these factors present the situation of a

necessary but nonemergency medical procedure where

there was (1) a delay in requesting court involvement,

(2) a delay in court adjudication and (3) a desire, based

on her educational plans, to expedite Naomi’s having

the procedure. The respondent has not demonstrated

that the majority of cases will have these characteris-
tics, and, thus, we conclude that the majority of cases

will likely be amenable to a stay to permit appellate

review, which could be expedited.

Although an appellate stay is not automatic in juvenile

matters, a trial court has authority to order a stay of

its ruling to permit appellate review. See Practice Book

§ 61-12. In addition, when a stay is denied, a party may

challenge such denial by filing a motion for review. See

Practice Book § 61-14. Pursuant to such a motion for

review, this court could modify or vacate the denial

and impose a stay. See Practice Book § 66-6. Further,

where appropriate, our appellate rules provide wideranging authority to expedite the appellate process. See

Practice Book §§ 60-2 and 60-3; see also E. Prescott,

Connecticut Appellate Practice and Procedure (6th Ed.

2019) § 6-2:7, p. 390.

We conclude that, in the typical case involving a

parental objection to a recommended nonemergency

medical procedure, none of the factors that persuaded

the trial court and this court to deny a stay would be

present. The typical case would likely involve a younger

child, with court involvement much closer to the point

when the need for the medical procedure was identified

and without a need for immediacy due to looming college entrance. As a result, such cases could receive

appellate review either through a stay or an expedited

appeal process or both. See In re Cassandra C., 316

Conn. 476, 480, 493, 112 A.3d 158 (2015) (where child

diagnosed with cancer and was in need of chemotherapy, to which child and her mother objected, our

Supreme Court denied stay of trial court’s order of

treatment but heard case on expedited basis, ruling

from bench).

The respondent contends that the previously

described analysis is contradicted by our Supreme

Court’s statement in several cases that ‘‘[p]aradigmatic

examples [of the capable of repetition, yet evading

review exception] are abortion cases and other medical

treatment disputes.’’ (Internal quotation marks omitted.) Wendy V. v. Santiago, supra, 319 Conn. 546. The

respondent suggests that the reference to ‘‘ ‘other medical treatment disputes’ ’’ means that all medical disputes are within the exception and can never be moot.

A close reading of the cases cited by the respondent,

however, persuades us that her reading of that statement goes too far.

The first case to use language approximating the language on which the respondent relies was Loisel. In

discussing the capable of repetition factor, our Supreme

Court in Loisel observed that it was appropriate to view

the question presented in that case as a proxy for future

cases and stated that a failure to do so ‘‘would mean

that a case equivalent to Roe v. Wade, 410 U.S. 113, 93

S. Ct. 705, 35 L. Ed. 2d 147 (1973), the paradigm of an

issue capable of repetition, yet evading review, could
never be heard in the absence of a class action.’’

(Emphasis added.) Loisel v. Rowe, supra, 233 Conn.

385. Loisel involved the issue of eligibility for welfare

benefits and did not involve medical treatment. Id., 371.

Likewise, five of the six cases cited by the respondent

in her appellate brief in support of her claim that all

medical treatment disputes present functionally insurmountable time constraints do not concern medical

treatment. See Wendy V. v. Santiago, supra, 319 Conn.

542 (whether hearing was required in connection with

application for domestic violence restraining order);

In re Emma F., supra, 315 Conn. 417–18 (court order

enjoining newspaper from publishing contents of

habeas corpus petition mistakenly filed as publically

available civil action); Putman v. Kennedy, 279 Conn.

162, 164, 900 A.2d 1256 (2006) (whether expiration of

six month domestic violence restraining order rendered

appeal from that order moot); Wallingford v. Dept. of

Public Health, supra, 262 Conn. 759 (jurisdiction of

Department of Public Health over land owned by town);

Szymonik v. Szymonik, 167 Conn. App. 641, 651, 144

A.3d 457 (whether orders regarding guardian ad litem

fees should be characterized as in nature of child support and therefore not subject to appellate stay), cert.

denied, 323 Conn. 931, 150 A.3d 232 (2016). Although

it is correct that, in discussing the nature of the exception’s inherently time limited factor, each of those cases

contains the phrase, ‘‘[p]aradigmatic examples are abortion cases and other medical treatment disputes,’’ it is

equally correct that, given the issue in each case, the

reference to medical treatment disputes was dictum.

The respondent also relies on Russo v. Common

Council, 80 Conn. App. 100, 832 A.2d 1227 (2003), as

another case using language ‘‘similar’’ to the ‘‘paradigmatic examples’’ phrase contained in the previously

cited cases. Russo concerned a legal action seeking

correction of a city budget. Id., 102. In discussing

whether the plaintiff’s case, although moot, was capable

of repetition, yet evading review, this court stated:

‘‘Medical treatment disputes, such as refusals to accept

blood transfusions because of religious beliefs . . .

provide examples of cases involving functionally insurmountable time constraints.’’ (Citation omitted; internal

quotation marks omitted.) Id., 108. In support of that

assertion, this court in Russo cited Stamford Hospital

v. Vega, 236 Conn. 646, 654–55, 674 A.2d 821 (1996). In

Stamford Hospital, an adult patient objected to a blood

transfusion on religious grounds. Id., 649–50. Because

the patient’s physicians believed that blood transfusions

were essential for the patient to survive, the hospital

filed a complaint requesting that the court issue an

injunction permitting the hospital to administer blood

transfusions to the patient. Id., 650–51. At an emergency

hearing conducted during the early morning hours, the

patient’s doctors testified that, ‘‘with reasonable medical certainty, she would die without blood transfu-
sions.’’ Id. The trial court granted the hospital’s request

to allow blood transfusions, and the patient recovered.

Id., 652. On appeal, the hospital conceded that the case

was not moot. Id., 653.

Stamford Hospital concerned a clear emergency situation involving a functionally insurmountable time constraint—the patient needed to have blood transfusions

immediately or she would die. By citing to Stamford

Hospital, this court in Russo appropriately tethered the

phrase ‘‘medical treatment disputes’’ to those situations, such as medical emergencies and abortions, that

present truly insurmountable time constraints. See

Russo v. Common Council, supra, 80 Conn. App. 108.

We are not persuaded that our Supreme Court has

declared all medical treatment disputes—including

those involving nonemergency medical treatment procedures—to be inherently time limited such that they

would always escape appellate review and come within

the exception to mootness.

Probably the strongest indication that nonemergency

medical treatment disputes do not escape review are

the scores of cases in which such review was, in fact,

conducted without resort to the exception to the mootness doctrine. See In re Elianah T.-T., 326 Conn. 614,

616, 165 A.3d 1236 (2017) (whether commissioner is

authorized to vaccinate child placed temporarily in

commissioner’s custody over parents’ objections to vaccination); see also In re Eric B., 189 Cal. App. 3d 996,

999, 1005, 235 Cal. Rptr. 22 (1987) (whether juvenile

court can order minor dependent to undergo periodic

medical monitoring for recurring cancer), review

denied, California Supreme Court (May 14, 1987); In re

G.K., 993 A.2d 558, 559 (D.C. App. 2010) (challenge

to court order that directed child and family services

agency to decide whether to authorize inpatient, nonemergency psychotropic medications for neglected

child in its custody); In re Karwath, 199 N.W.2d 147,

148 (Iowa 1972) (challenge to order of juvenile court

for surgical removal of children’s tonsils and adenoids);

In re Seiferth, 309 N.Y. 80, 82, 127 N.E.2d 820 (1955)

(action seeking to have fourteen year old child declared

neglected and his custody transferred to Commissioner

of Social Welfare for purpose of consenting to surgery

to repair child’s cleft palate and harelip);In re Sampson,

65 Misc. 2d 658, 659–61, 317 N.Y.S.2d 641 (1970) (action

involving nonemergency surgery to correct child’s facial

disfigurement where child’s mother would not consent

to blood transfusions during surgery), aff’d, 37 App.

Div. 2d 668, 323 N.Y.S.2d 253 (1971), aff’d, 29 N.Y.2d

900, 278 N.E.2d 918, 328 N.Y.S.2d 686 (1972); In re

Guardianship of Stein, 105 Ohio St. 3d 30, 30–31, 821

N.E.2d 1008 (2004) (whether Probate Court exceeded

its authority when it appointed guardian for infant child

with power to authorize withdrawal of life-sustaining

treatment for child); In re Green, 448 Pa. 338, 340–41,

292 A.2d 387 (1972) (action seeking appointment of
guardian ad litem for minor child whose parents

objected, on religious grounds, to surgery for child’s

scoliosis); In re Hudson, 13 Wn. 2d 673, 684, 126 P.2d

765 (1942) (‘‘whether, despite . . . good faith decision

[of child’s mother] that it [was] unwise and dangerous

to permit amputation of [minor child’s] left arm [which

had congenital deformity] as recommended by two surgeons, a parent may be deprived by a juvenile court of

custody and control of her child for a sufficient period

of time to subject the child to the operation which, in the

judgment of the court, the child’s welfare demand[ed]’’);

annot., 21 A.L.R.5th 248, §§ 1–7 (1994) (collecting cases

concerning whether and under what circumstances

court or public agency may order nonemergency medical treatment to be given to child despite objections by

child’s parents on religious grounds).

Because the questions presented by the respondent—

whether the trial court violated her fundamental right

to direct the health care decisions and religious upbringing of her child and what is the correct legal standard

to apply regarding parental objection to nonemergency

medical treatment for a child in the custody of the

commissioner—will not evade review, the present case

does not fall within the capable of repetition, yet evading review exception to the mootness doctrine. Further,

because there is no practical relief that we can afford

the respondent with respect to this claim, the claim is

moot, and this appeal must be dismissed.

The appeal is dismissed.

In this opinion the other judges concurred.

* July 22, 2021, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1

In her principal brief, the respondent raises the issue of the correct legal

standard a trial court should use to order nonemergency medical treatment

for a child in the custody of the commissioner over a parent’s objection on

religious grounds. She contends that the trial court’s use of the best interest

of the child standard is unconstitutional and advocates that the balancing

standard suggested by former Chief Justice Chase T. Rogers in her concurring opinion in In re Elianah T.-T., 327 Conn. 912, 918, 171 A.3d 447 (2017),

should be adopted in Connecticut. Because of our determination that the

appeal is moot and does not qualify for an exception to the mootness

doctrine, we do not reach the merits of this claim.