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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.
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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 constitu-
tional 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 commis-
sioner 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 involve-
ment, 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 dis-
putes 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 prej-
udice 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 gen-
eral, 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 (commis-
sioner), 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 upbring-
ing of her child by allowing the commissioner to consent
to Naomi’s nonemergency surgery over the respon-
dent’s religious objection. The respondent unsuccess-
fully 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’’ excep-
tion to the mootness doctrine, we dismiss the appeal
as moot.
The record reflects the following factual and proce-
dural 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 adjudi-
cated uncared for and committed to the custody of the
commissioner, who was named her guardian. There-
after, the court approved a permanency plan that called
for reunification of Naomi with the respondent. Follow-
ing 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 plead-
ing titled ‘‘Child’s Motion for Medical Procedure.’’ The
motion provided in part: ‘‘Naomi . . . suffers from sco-
liosis, and the treating physician has recommended that
she undergo surgery to correct the severe curvature of
her spine. . . . Naomi . . . is requesting the proce-
dure, which is recommended by her treating physicians.
. . . The child’s parent . . . is opposed to the proce-
dure.’’ 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 typi-
cally 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 recom-
mended 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 hear-
ing 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 life-
threatening. 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 Janu-
ary 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 moot-
ness issue in their briefs. On appeal, the respondent
asserts that, although this court can grant her no practi-
cal relief, her claims fit within the ‘‘capable of repetition,
yet evading review’’ exception to the mootness doc-
trine. 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 omit-
ted; 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 respon-
dent] in any way.’’ (Internal quotation marks omitted.)
Id., 545.
‘‘To qualify under the capable of repetition, yet evad-
ing review exception, three requirements must be met.
First, the challenged action, or the effect of the chal-
lenged 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 iden-
tifiable 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 excep-
tion 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 chal-
lenged 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 function-
ally 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 com-
pleted, 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 occa-
sioned 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 wide-
ranging 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 col-
lege 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 chemother-
apy, 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 omit-
ted.) Wendy V. v. Santiago, supra, 319 Conn. 546. The
respondent suggests that the reference to ‘‘ ‘other medi-
cal treatment disputes’ ’’ means that all medical dis-
putes 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 state-
ment goes too far.
The first case to use language approximating the lan-
guage 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 insur-
mountable 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 sup-
port 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 excep-
tion’s inherently time limited factor, each of those cases
contains the phrase, ‘‘[p]aradigmatic examples are abor-
tion 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 ‘‘para-
digmatic 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 insur-
mountable 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 medi-
cal 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 situ-
ation involving a functionally insurmountable time con-
straint—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 situa-
tions, 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 pro-
cedures—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 moot-
ness 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 vac-
cination); 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, non-
emergency 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 sur-
geons, 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 medi-
cal 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 upbring-
ing 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 evad-
ing 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 concur-
ring 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.