Opinion
No. H12-CP07-011225-A
May 23, 2007
MEMORANDUM OF DECISION
INTRODUCTION:
This is a contested hearing on whether to sustain or vacate an order of temporary custody.
FACTUAL FINDINGS:
The following facts are found by a fair preponderance of the evidence:
1. On February 9, 2007, the commissioner of the Department of Children and Families ("DCF') filed petitions alleging that Ahjanae W. ("Ahjanae") and her half-sister were neglected because (a) each was being denied proper care and attention, physically, educationally, emotionally or morally; and (b) each was being permitted to live under conditions, circumstances or associations injurious to well being.
2. In an addendum to each petition, DCF alleged that (a) the mother had not addressed her substance abuse through outpatient treatment; (b) the mother had not met the mental health needs of the half-sister or herself; (c) the mother did not follow through with medical appointments for the half-sister; and (d) the father has failed to provide a safe nurturing environment for Ahjanae.
3.Pursuant to Connecticut General Statutes ("C.G.S.") section 17a-101g(e), which provides in part that if DCF "has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety . . ." on May 1, 2007, at 1:45 p.m., DCF removed Ahjanae and her half-sister from the mother's sole care and custody (the "ninety-six hour hold").
"The remedies provided in [sections] 46b-129(b) and 17a-101g(c) are available only upon a finding that there is probable cause to believe that the child is in unsafe surroundings and that immediate removal is necessary to protect the child from harm." Teresa T. v. Ragaglia, 272 Conn. 734, 749-50, 865 A.2d 428 (2005). (Footnotes omitted.) Pursuant to Public Act 05-35, subsection (c) of section 17a-101 became subsection (e).
The DCF care coordinator assigned to Ahjanae testified that she first met the father and a paternal aunt on Aril 30, 2007, at the school attended by Ahjanae. The case worker first met the father on May 2, 2007. The father has claimed that he had custody of Ahjanae at the time of her removal by DCF.
4. Pursuant to C.G.S. section 46b-129(b), which provides in part that "[i]f it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal from such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . .," on May 3, 2007, the court found that (1) Ahjanae and her half-sister were "in immediate physical danger from surroundings . . ." and that (2) "[c]ontinuation in the home [was] contrary to the welfare of said child[ren] . . ." and the court issued ex parte orders vesting temporary custody of Ahjanae and her half-sister in DCF.
Sections 17a-101g and 46b-129 contain different language establishing a basis for a ninety-six hour hold and issuance of ex parte order of temporary custody. The Supreme Court has determined that the differing language reflects "a distinction without a difference." Teresa T. v. Ragaglia, supra, 272 Conn. at 758 n. 9: "The reasonable cause determination in [section] 46b-129(b) requires a finding that the child is `suffering from serious physical illness or serious physical injury or is in immediate physical danger,' whereas the probable cause determination in [section] 17a-101g(c) requires a finding that the child is `in imminent risk of physical harm.' The word `imminent' is defined as `[n]ear at hand,' `impending' and `on the point of happening . . . Something which is threatening to happen at once, something close at hand, something to happen upon the instant . . .' Black's Law Dictionary, supra. The word `immediate' is defined as `[p]resent; at once; without delay . . . [T]he word . . . denotes that action is or must be taken either instantly or without any considerable loss of time.' Id. In our view, this is a distinction without a difference . . ."
5. On May 11, 2007, the mother and the father were present at the preliminary hearing in the local court on the order of temporary custody. Each was represented by counsel. Ahjanae was represented by counsel. The mother agreed to sustain the order of temporary custody. The father did not agree to sustain such order and he requested a full hearing.
As is the case in virtually all child protection session contested matters, Ahjanae was not present at either the preliminary hearing or the contested hearing but at each such hearing she was represented by counsel.
At each hearing DCF was represented by an assistant attorney general.
6. On May 17, 2007, at the contested hearing, each parent was present and was represented by counsel. Ahjanae was represented by counsel. At the commencement of such contested hearing, such father filed a motion "to dismiss the neglect petition dated February 9, 2007. The grounds set forth in such motion were (1) lack of jurisdiction over the father; (2) insufficiency of service of process; and (3) insufficiency of process. The father's memorandum of law, however, discussed only lack of jurisdiction and insufficiency of service of process. It did not discuss insufficiency of process.
7. In his motion and at such hearing the father did not claim that (a) the neglect petition and ancillary documents, or (b) the order of temporary custody and ancillary documents, were not properly served on the mother. Also, the father did not claim that the order of temporary custody and ancillary documents were improperly served on him, nor did he file any written objection to the service on him of such order of temporary custody papers. The father did not assert that the court did not have personal jurisdiction over the mother or Ahjanae, each of whom has been represented by counsel throughout the neglect and order of temporary custody proceedings.
In his memorandum in support of his motion to dismiss the father admits the following: ". . . the father presented himself the first time on May 7, 2007 to the clerk's office to apply for an attorney to represent him on a motion for order of temporary custody. He did so on the advice of the DCF worker who advised him of the hearing on the motion for order of temporary custody . . . In this case, father's first appearance before the court, other than [at] the clerk's office[,] was May 11, 2007." (Father's memorandum, 3.)
The father was present at the preliminary and the contested hearings. At each hearing he was represented by counsel who had been appointed, after his May 7, 2007, appearance at the clerk's office, to represent him both in the neglect case and with respect to the order of temporary custody proceedings.
8. At such contested hearing, the father argued that although DCF served the February 9, 2007, neglect petition and ancillary papers by abode service made at the last address DCF had for him, because he had not lived at such address for several years, he was not properly served with such papers. He further argued that because he was not properly served with such neglect papers, the neglect petition concerning Ahjanae should be dismissed not only as to him but also as to the mother, although it was properly served on the mother, and the mother did not move to dismiss such neglect petition concerning Ahjanae within fifteen days of her plea. He argued that if such neglect petition were dismissed both as to him and the mother, there was no predicate for the motion for temporary custody, and the order of temporary custody should be vacated. Finally, the father argued that if such order of temporary custody were vacated, Ahjanae should be returned to his custody because she was in his custody for five days before she was removed by DCF pursuant to the ninety-six hour hold (those five days Ahjanae spent with one of the father's sisters were the sum total of the father's "custody" of Ahjanae during her almost seven years of life).
Practice Book § 33a-2 provides in part:
"(a) A summons accompanying a petition alleging that a child is neglected, uncared for or dependent, along with the summary of facts, shall be served by the petitioner on the respondents and provided to the office of the attorney general at least fourteen days before the date of the initial plea hearing on the petition, which shall be held not more than forty-five days from the date of filing the petition . . ."
Practice Book § 34a-9 provides as follows:
Any respondent or child, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within fifteen days of the plea date stated on the petition.
". . . based on the foregoing, father respectfully requests the court dismiss the neglect petition, vacate the order of temporary custody and return the child to his care for insufficiency of service of process and lack of personal jurisdiction over respondent father." (Father's Memorandum, 4.)
9. In summary, although the father claimed that the court had no personal jurisdiction over him, he asked the court affirmatively to order that he be awarded custody of Ahjanae. Because at the May 11, 2007, preliminary hearing, the local court accepted the agreement of the mother to sustain the order of temporary custody, (i) he alone sought the contested hearing, and (ii) he actively participated in such contested hearing.
10. The mother testified that she was the legal custodian of Ahjanae.
11. The mother testified that the father was transient — he had "a bunch of apartments." According to the mother, one of the places that the father resided was at a girlfriend's apartment; she was the mother of another of his children. The mother stated that another location where the father resided was paternal aunt's apartment where he placed Ahjanae on April 26, 2007. The mother said that such paternal aunt had been determined by DCF not to be an appropriate resource.
12. The court finds that on April 26, 2007, through May 3, 2007, the father was transient and that he had no permanent home where Ahjanae could reside with him. The father was on probation, he was having difficulties with alcohol abuse, and he had voluntarily (presumably to comply with the terms of his probation) entered an out-patient treatment program for his alcoholism. The father was continuing to consume alcohol while in such treatment.
13. The court also finds that between April 26, 2007, and May 3, 2007, a serious question existed concerning the suitability of the paternal aunt selected by the father to care for Ahjanae, and, because of the findings in this paragraph and in paragraph 12, Ahjanae's safety and security were at risk.
14. On Thursday, April 26, 2007, the mother testified that she was walking with Ahjanae to visit the maternal grandmother at the maternal grandmother's work. The father drove by and offered them a ride. The mother said that the father told her that he wanted to take Ahjanae "for a little while." The father drove the mother to the location of the maternal grandmother's employment and then he left with Ahjanae.
15. The mother stated that on Sunday. April 29, 2007, the father came to her apartment to obtain Ahjanae's school uniform. She thought that he did not intend to return Ahjanae to her.
Because he has a temper, she testified that she did not want to argue with him.
16. The mother then testified about her belief that the father and people acting in concert with him had attempted to "drive her crazy" by following her. She also believed that the father said negative things about her.
17. On cross-examination by the father's counsel the mother testified about two girlfriends of the father and about the paternal aunt occasionally with whom he resided.
18. The mother conceded that on April 26, 2007, when the father saw them walking, Ahjanae should have been in school. During such cross-examination the mother testified that she had kept Ahjanae out of school because she thought it was unsafe. She also conceded that despite her concerns, and the father "talking junk," she allowed Ahjanae to go with him although Ahjanae did not want to do so.
19. Until after DCF invoked the May 1, 2007, ninety-six hour hold on Ahjanae, the last time the mother saw her was on April 26, 2007. The mother testified that on May 2, 2007, she saw the father and she believed that he was intoxicated. However, she did not believe that he was intoxicated when she saw him on April 26 or April 29. The mother's position was that the father was visiting with Ahjanae through May 1, 2007, when DCF invoked the ninety-six hour hold.
20. Between April 26, 2007, and May 3, 2007, the mother failed to act to protect Ahjanae. She failed to seek help after the father removed Ahjanae from her care. She failed to seek the return to her of Ahjanae. Between April 26, 2007, and May 3, 2007, the mother denied Ahjanae proper care and attention.
21. The mother stated that if Ahjanae could not be immediately reunified with her, she would rather that she remain in foster care than be placed with the father. She stated that the father continued to be abusive to his girlfriends, and thus she feared for the safety of Ahjanae.
22. The mother understood that DCF had filed the February 9, 2007, neglect petitions because it believed that she was smoking marijuana, not supervising and caring for her children (she said that DCF alleged that they were begging for food and in dirty clothes), and that she was "partying all the time." The mother testified that DCF sent her "to programs," but that she stopped attending them. The children were enrolled in programs, but the mother stopped their attendance.
23. The mother testified that she agreed to sustain the order of temporary custody "for the safety of her children."
24. The DCF care coordinator assigned to the school Ahjanae was supposed to attend testified, and her affidavit in support of the issuance of the ex parte order of temporary custody was admitted as a full exhibit.
25. Such DCF worker testified and wrote that both Ahjanae and her half-sister "did not return to school after Christmas vacation." (Exhibit 3, 1.)
26. On April 30, 2007, such worker received a telephone call from Ahjanae's school informing her that after an absence of four months Ahjanae had returned to school "with her aunt." Id., 2. (The court gives the father and the paternal aunt credit for inquiring about and insuring that Ahjanae immediately was returned to such school.) Such father stated in a school conference that he had asked the mother to allow him to care for Ahjanae. Id.
27. On May 1, 2007, when DCF invoked the ninety-six hour hold, Ahjanae and her half-sister were at school for the second day after such four-month post-Christmas vacation absence. Id.
28. After a meeting with the mother, such worker concluded that the mother believed that she was safeguarding the children by keeping them away from everyone. Such worker testified that she believed that the mother was experiencing paranoia.
29. Unfortunately, because the two children had been kept out of school for months, the worker testified that each will have to be retained in the current grade. The half-sister was scheduled to be tested for qualification for special education services, but because of her extended absence from school, that did not occur.
30. Such worker stated that DCF decided to invoke the ninety-six hour hold and to seek orders of temporary custody because (1) the mother did not follow up with necessary treatment for the half-sister; (2) each of the children was not attending school; (3) each of the children was not visible in the community; (4) the mother and the children were not accessible to DCF even pursuant to a court order to make such children accessible to DCF; and (5) DCF had serious concerns about the mother's judgment concerning the children.
31. The DCF case worker assigned to the family testified, and his affidavit in support of the issuance of the ex parte order of temporary custody was admitted as a full exhibit.
32. After the court entered the April 17, 2007, order allowing DCF access to Ahjanae and her half-sister, on April 21, 25 and 29, 2007, such worker unsuccessfully attempted home visits. (Exhibit 1, 2.) The mother did not respond to the worker's attempts to visit or to his notes left for her requesting contact. Id. The case worker's last actual home visit with the mother had been in November 2006.
33. On May 2, 2007, the worker met with the father and two paternal aunts. Id. The worker "smelled a strong odor of alcohol on father's breath." Id. The father made an excuse to the worker that "he had been drinking because he could not sleep due to this situation." Id. The father told the worker that "he currently [was] in substance abuse treatment at the Institute of Living. The worker has verified this." Id. The father is also on probation through June 2007. On cross-examination the worker said that at times during his May 2, 2007, meeting with the father, the father was slurring his speech.
34. During the involvement of each DCF worker, the mother had custody of Ahjanae and her half-sister. Neither worker had any contact with the father until April 30, 2007. The case worker first met the father on May 2, 2007.
35. The court finds that on May 1, 2007, when DCF invoked the ninety-six hour hold, and on May 3, 2007, when the local court issued the ex parte order of temporary custody, Ahjanae was in the sole care and custody of the mother, but because of her mental health and substance abuse issues, the mother was unable to perform her custodial duties and responsibilities to maintain the safety and security of Ahjanae, and the father who had no permanent residence and who was struggling with alcohol abuse issues was not a safe resource for Ahjanae.
36. Thus Ahjanae was in "in immediate physical danger from surroundings . . ." and (2) "[c]ontinuation in the home [was] contrary to the welfare of said child . . ." C.G.S. section 46b-129(b).
37. The court also finds that the father (a) solely contested the order of temporary custody, (b) actively participated in the contested hearing on the order of temporary custody, and (c) through such participation actively sought custody of Ahjanae.
38. Additional findings are set forth below.
APPLICABLE LAW: 1. Order of temporary custody:
Pursuant to C.G.S. § 17a-101g(e) (see footnote 1, supra), which provides in part that if DCF "has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety . . .", on May 1, 2007, at 1:45 p.m., DCF removed Ahjanae and her half-sister from the mother's care and custody.
Pursuant to C.G.S. § 46b-129(b), which provides in part that "[i]f it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal from such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . .", on May 3, 2007, the court found that (1) Ahjanae and her half-sister were "in immediate physical danger from surroundings . . ." and that (2) "[c]ontinuation in the home is contrary to the welfare of said child[ren] . . ." The court issued an ex parte order vesting temporary custody of Ahjanae and her half-sister in DCF.
In In re Nashiah C., 87 Conn.App. 210, 221, 866 A.2d 669 (2005), cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005), the Appellate Court set forth the relation between the ex parte order of temporary custody and the subsequent contested hearing:
"We turn now to the respondent's second argument. We initially set forth the applicable law and our standard of review. Pursuant to § 46b-129(b), the court may issue `an order ex parte vesting in some suitable agency or person the child's or youth's temporary care and custody' if it appears, on the basis of the petition and supporting affidavits, that there is reasonable cause to believe that `(1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) that as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety . . .' `At a subsequent hearing on an order of temporary custody, the proper standard of proof . . . is the normal civil standard of a fair preponderance of the evidence.' (Internal quotation marks omitted.) In re Kaurice B., 83 Conn.App. 519, 522, 850 A.2d 223 (2004).' "
2. The father's motion to dismiss because of lack of personal jurisdiction:
As set forth on page 11, supra, the court has found that the father
(a) solely contested the order of temporary custody;
(b) actively participated in the contested hearing on the order of temporary custody; and
(c) through such participation actively sought custody of Ahjanae.
By his choices and actions as set forth above, the father has waived any claim that he had to the absence of personal jurisdiction over him with respect to neglect petition and the order of temporary custody. In re Baby Girl B., 224 Conn. 263, 291-92, 618 A.2d 1 (1992). In such Baby Girl B. case the Supreme Court recognized that a party may waive his or her claim to a lack of personal jurisdiction:
In the evidentiary hearings held pursuant to the amended petition, the parties presented extensive testimony concerning events that had transpired between July 31, 1991, the date of the hearing on the original petition, and April 14, 1992, the date of the amended petition.
CT Page 8730
Our cases have recognized that a party may waive its objection to a trial court's erroneous exercise of personal jurisdiction if that party "generally appears in the case and actively prosecutes the action or contests the issues." Foley v. Douglas Bros., Inc., supra, 380; Receivers Middlesex Banking Co. v. Realty Investment Co., 104 Conn. 206, 214, 132 A. 390 (1926); see also Cichy v. Kostyk, 143 Conn. 688, 696-97, 125 A.2d 483 (1956); Ferguson v. Sabo, 115 Conn. 619, 623, 162 A. 844 (1932) . . .
Even if the court's authority over the father in this order of temporary custody proceeding, where the father does not dispute that he was served with the papers relating thereto, were dependent on whether the father was served with the neglect petition and ancillary papers, as set forth above the mother was properly served with such neglect petition and ancillary papers, has appeared with counsel, and has entered a pro forma denial to the allegations of such petition. Ahjanae has appeared through counsel who represented her interests in the hearing on the order of temporary custody. The court has jurisdiction over them, and it has the statutory authority to enter custody orders in the best interest of Ahjanae. C.G.S. § 46b-129(b), (f), (g) and (h); C.G.S. § 46b-56; C.G.S. § 46b-121; Practice Book § 33a-6.
Because DCF made abode service on the last known address it had for the respondent father, he has the burden of proof to establish lack of personal jurisdiction. Golodner v. Women's Center of Southeastern Connecticut, 281 Conn. 819, 825, 917 A.2d 959 (2007): "If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction. Id. This general rule is different, however, with respect to determining whether the court has jurisdiction over a defendant who is served personally or through abode service. In those circumstances, as opposed to situations wherein service is constructive, e.g., service on a foreign corporation or nonresident individual by mail, the defendant bears the burden of disproving personal jurisdiction."
In this case the respondent father did not satisfy such burden.
CONCLUSION AND ORDER SUSTAINING ORDER OF TEMPORARY CUSTODY:
This is a case where, as of the May 3, 2007, date of the ex parte order of temporary custody (and at present), based on the evidence presented to the court, it is more likely or probable than not that Ahjanae would be in immediate physical danger if returned to the mother who was her sole custodian on the date of such ex parte order, or to the father, and her immediate removal was and is necessary to ensure her safety.
However, pursuant to C.G.S. § 17a-111b, DCF has a statutory duty to make efforts to reunify Ahjanae with her mother and father:
(a) The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (j) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129.
Also, pursuant to C.G.S. § 17a-10a, DCF has a statutory duty to provide visitation to the mother and the father:
(a) The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such child's parents and siblings, unless otherwise ordered by the court.
(b) The commissioner shall ensure that such child's visits with his or her parents shall occur as frequently as reasonably possible, based upon consideration of the best interests of the child, including the age and developmental level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship . . .
As of (1) the end of Christmas vacation, when the mother did not cause Ahjanae to return to school, and thereafter; (2) April 26, 2007, when the mother allowed Ahjanae to go with her father for an indefinite time, although Ahjanae did not want to do so, and Ahjanae's safety and security were at risk because of such father's alcoholism; (3) April 30, 2007, when Ahjanae returned to school and her whereabouts became known after the passage of four months; (4) May 1, 2007, when Ahjanae was removed by DCF under a ninety-six hour hold; and (5) May 3, 2007, when the ex parte order of temporary custody was issued by the court, Ahjanae was in immediate physical danger from her surroundings.
By a fair preponderance of the evidence, DCF has thus established that at the end of the 2006 Christmas vacation and thereafter; April 26, 2007; April 30, 2007; May 1, 2007; and May 3, 2007, Ahjanae was and "is . . . in immediate physical danger from [her] surroundings, and (2) that as a result of said conditions, [her] safety [was and] is endangered and immediate removal from such surroundings [was and] is necessary to ensure [her] safety . . ."
By a fair preponderance of the evidence, the order of temporary custody is thus sustained. Continuation of Ahjanae in the mother's or the father's care under the circumstances existing on the foregoing dates was contrary to her safety, welfare and best interest.
Such temporary custody order shall remain in effect unless and until vacated, terminated or otherwise modified by the court.
The father's motion to dismiss for lack of personal jurisdiction is denied.
Insofar as the father is claiming that he is a necessary or an indispensable party and because of the alleged lack of personal jurisdiction over him this court lacks subject matter jurisdiction to proceed with this case, the Supreme Court recently has rejected that approach. Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 286, 288, 289, 914 A.2d 996 (2007). In Batte-Holmgren, at page 286, the Supreme Court distinguished between the failure to cite in or give notice to a necessary or an indispensable party, and issues of subject matter jurisdiction that prohibit a case from proceeding.
In neglect cases and order of temporary custody proceedings, each parent is an important party with significant interest in the outcome of such proceedings. However in this case, Ahjanae's father, who had actual notice of the pending neglect case and who actually participated in the order of temporary custody proceedings, made a voluntary choice to attempt to avoid this court's personal jurisdiction over him. Even if this court, contrary to its findings, does not have personal jurisdiction over him, such lack of personal jurisdiction can be cured — and the court expects that DCF will act immediately to do so — before the neglect trial by another service of the neglect petition and ancillary documents on the father. See footnote 9, supra.
CT Page 8734