Opinion
No. L15-CP08-008515-A
November 12, 2008
MEMORANDUM OF DECISION
On September 4, 2008, the commissioner of the department of children and families ("DCF") filed a neglect petition and sought from the Superior Court for Juvenile Matters ("the regional court") an ex parte order of temporary custody ("OTC"). See In re Heather F., Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., October 28, 2008). The regional court found that (1) Heather F. ("Heather") was "in immediate physical danger from surroundings . . ."; that (2) "[c]ontinuation in the home is contrary to the welfare of said child . . ."; and the court issued an ex parte order vesting temporary custody of Heather in DCF. Id. In support of its motion for an ex parte order of temporary custody, DCF submitted an affidavit from the social worker assigned to the family. (Exhibit 3.)
On September 9, 2008 at the regional court the father and the mother of Heather contested the court's ex parte findings and its determination that Heather's temporary care and custody should be vested in DCF. In re Heather F., supra. The regional court transferred the case to the Child Protection Session of the Superior Court to conduct the contested hearing. Id. On September 15, 2008, the parents sought to waive the ten day hearing requirement and an extension of time for the hearing (DCF and the child's attorney objected to such extension of time) and the CPS court accepted such waivers and granted such extension. Id. On October 8, October 23 and October 24, 2008, this court conducted the contested hearing. Id. On or about October 20, 2008, the father filed a motion to hold DCF in contempt and order award of attorneys fees. The father requested a hearing on October 24, 2008, but in order to allow all parties adequate notice and the opportunity to prepare for the hearing on such motion, see Connolly v. Connolly, 191 Conn. 468, 475-76, 464 A.2d 837 (1983), the court scheduled such motion to be heard on November 7, 2008.
"[i]t is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue." Osterlund v. State, [ 129 Conn. 591, 596, 30 A.2d 393 (1943)] . . . Connolly v. Connolly, supra, 191 Conn. 475-76.
The father sought to hold DCF in contempt allegedly because the affidavit prepared and submitted by the DCF worker failed to comply with the requirements set forth in In re Lindsey P., 49 Conn.Sup. 132, 153 (2004), which the court (Lopez, J.) "directed," as set forth by the father in such motion:
DCF is therefore directed, when presenting an application for an ex parte order of temporary custody, to include in its materials all information which is exculpatory and/or favorable to the parents or guardians. The overriding concern for family integrity demands nothing less.(Emphasis supplied.)
"Directed" is defined as follows in the The American Heritage(r) Dictionary of the English Language, Fourth Edition:
1. To manage or conduct the affairs of; regulate.
2. To have or take charge of; control. See Synonyms at conduct.
3. To give authoritative instructions to: directed the student to answer.
4. To cause to move toward a goal; aim. See Synonyms at aim.
5. To show or indicate the way for: directed us to the airport.
6. To cause to move in or follow a straight course: directed their fire at the target.
7. To indicate the intended recipient on (a letter, for example).
8. To address or adapt (remarks, for example) to a specific person, audience, or purpose.
9. a. To give guidance and instruction to (actors or musicians, for example) in the rehearsal and performance of a work.
b. To supervise the performance of.
v. intr.
1. To give commands or directions.
2. To conduct a performance or rehearsal.
The American Heritage(r) Dictionary of the English Language, Fourth Edition, Houghton Mifflin Company, 2004 (accessed November 12, 2008). Dictionary.com: http://dictionary.reference.com/browse/directed.
The American Heritage(r) Dictionary of the English Language, Fourth Edition, defines "instruction" in part as "[a] authoritative direction to be obeyed; an order. Often used in the plural: had instructions to be home by midnight."
Thus, the court in Lindsey P. seems to have "give[n] authoritative instructions to" DCF. Because such court, however, used the word "directed" instead of the word "ordered", by its choice of words the court thus is presumed not to have ordered DCF to act under penalty of contempt. See, e. g., Biasetti v. Stamford, 250 Conn. 65, 76, 735 A.2d 321 (1999):
. . . [I]n reliance on the classic inclusio unius [est] exclusio alterius argument, (we conclude) that had the legislature wished to restrict compensable incapacity only to those occasions when some physical element was involved, it would have included in other chapter 568 sections similar restrictive language to that used in § 31-349. Id." (Internal quotation marks omitted.) Crochiere v. Board of Education, supra, 227 Conn. 359-60.
See also, e. g., State v. Kemah, 289 Conn. 411, 425 (2008) (". . . We have therefore directed trial courts . . .")
See also the court's use of the words "orders" and "directed" in Lindsey P. set forth on page 4, infra. The court's alternating use of such words makes it unclear and ambiguous as to whether they are used interchangeably or have separate meanings and intentions. See In re Leah S., 284 Conn. 685, 694-95 (2007). This "direction" may also be overbroad in scope for the purpose of providing a basis for contempt as sought by the attorney for the respondent father because it encompasses "all information . . ." instead of information that is relevant and material to the issues related to the OTC. Id.
After setting forth such "direction," the court also set forth the following in its decision:
The court further orders that a copy of this memorandum of decision be sent to the supervisor of Wagner-Morellas social work unit, as well as to the administrator of that unit. A copy of this memorandum of decision shall also be sent to the state office of the child advocate and to the office of the federal court monitor.
The supervisors and the administrators of Wagner-Morella's social work unit are directed to appear before this court on May 27, 2004 at 10 am, to describe the steps that have been taken to prevent this type of omission from occurring again in their region. The court expects that part of the steps will include a review of the criminal laws of perjury as well as instruction in recognized best practices for the removal of children from their homes.
Id. (Emphasis supplied.)
The father's attorney also set forth the following in the father's motion for contempt:
II. RATIONALE OF MOTION
Father maintains that DCF failed, negligently or intentionally, to follow Court orders, and its own policies, by excluding highly relevant exculpatory evidence from the Affidavit, and by failing to review the Affidavit for legal sufficiency.
Therefore, Father maintains that he was prejudiced, financially, in that his attorney had to expend additional time in defending against the OTC, that would not have been necessary had DCF followed proper procedures.
III. SPECIAL NOTE
The undersigned attorney wishes to make it absolutely clear that he in no way whatsoever holds the social worker who prepared the Affidavit personally responsible for the failings of the Affidavit. He believes, based on his experience,[fn 1] that DCFs failure to follow Court orders and its own policies in preparing OTC affidavits is a systemic organization-wide problem. While agreeing that most social workers are good to excellent[fn 2], he nevertheless believes that DCF consistently refuses to follow mandates to protect the rights of parents in the system. This Motion is intended, among other things, to put an end to that practice.
The footnotes in such motion are as follows:
[fn 1] That experience is recounted in detail in the undersigned's web site, www. — law.com. That web site stands in contrast to the web site of the National Council of Juvenile and Family Court Judges, at www.ncifci.org. which presents the child protection situation largely from the social worker point of view.
[fn 2] This statement is made in the undersigned's web site.
The father's attorney then alleged several examples where the affidavit of such social worker did not include allegedly exculpatory and/or favorable information. [See fn 6.]
On November 7, 2008, after the father had completed the presentation of his evidence, the court denied such motion for contempt. This memorandum sets forth in more detail some of the court's reasons for such denial.
Although the father's attorney stated that he was proceeding against DCF, the father's sole witness was the worker who prepared the allegedly defective affidavit and the focus of the direct examination was what the worker knew and did not include in such affidavit. The father did not establish by a fair preponderance of the evidences that:
"In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order." Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001). Noll v. The Hartford Roman Catholic Diocesan Corporation, 2008 Ct.Sup. 15557, 15573, No. HHD X04 CV-02-4034702S, Superior Court, Judicial District of Hartford, Complex Litigation Docket at Hartford (Shapiro, J., September 26, 2008). If the court referred to any other evidence standard in the hearing, the court hereby corrects itself and applies the fair preponderance standard.
the Lindsey P. "direction" was an "order";
such "order" was still in effect as of September 4, 2008, and that it had not been modified or vacated;
The father's attorney asked the court to take judicial notice of the Lindsey P. decision but not of the Lindsey P. court file which in any event is not readily available to the court.
such worker knew of such "order";
such worker was subject to such "order";
such affidavit violated such "order" in any material manner;
such worker did not act in good faith with respect to such affidavit; such worker acted willfully;
such worker violated such "order";
any of the alleged exculpatory or favorable facts that were allegedly omitted from the worker's OTC affidavit would have resulted in a denial of the ex parte motion for the OTC;
DCF acted willfully with respect to such affidavit;
DCF acted willfully with respect to such "order"; DCF was still subject to such "order"; or
DCF violated such "order".
The father's attorney in such motion set forth DCF policy that establishes DCF's efforts to achieve good faith compliance with such "direction":
In response to Lindsey P., DCF made several additions or revisions to the DCF Policy Manual.
The father's attorney referred the court to sections 46-3-5, 46-3-19, and 46-3-19.1 of the DCF Policy Manual. (Exhibits F-9, F-10 and F-11.) Section 46-3-19.1 contains the following statements:
Because an ex parte OTC is granted in an emergency situation, without giving the parents an opportunity to present their side of the issue, it is important that the affidavit fairly discloses all relevant facts, including those facts that support the parents' position.
All relevant exculpatory evidence must be included, as well as relevant information favorable to the parent. For example, a mother's position that hospital staff lied about her visits to the child should be included in the affidavit . . .
Other types of relevant, favorable and exculpatory information might include a statement from a parent aide who disagrees with hospital staff and believes that a mother can parent the child adequately, or a statement from a counselor that mother has been substance-free for a lengthy period of time prior to the relapse that led to the child being born with cocaine in her system.
While DCF is no stranger to court sanctions including contempt, neither DCF's nor the worker's good faith actions in this case would support a finding of contempt. As set forth above, the father's attorney did not question the worker's good faith, nor did he establish any basis to do so through his direct examination. Section 46-3-19.1 of the DCF Policy Manual places the responsibility for preparation of the OTC affidavit on the social worker, a non-attorney, for review by a social work supervisor, another non-attorney, and the steps to be followed in such preparation are set forth in such section of the Manual. If the social worker and/or social work supervisor does not include any, some or all of any relevant exculpatory or favorable material that has not previously been considered by the court in connection with the case, see In re Heather F., supra, those relevant exculpatory and/or favorable facts can and most likely will be raised at a contested hearing as occurred in this case where they were determined not to be material to the issuance of the ex parte OTC or to the court's decision to sustain such order.
In In re Nathan Z., 2005 Ct.Sup. 13060, 13081-082, Superior Court, Judicial District of Windham Juvenile Matters at Willimantic (Bear, J., September 18, 2005), this court recounted some of DCF's history of court review including sanctions and contempt:
DCF's actions and inaction have been the subject of other cases. Unfortunately, DCF is no stranger to review by judges. Juan F. v. Rowland, Civil No. H-89-859, United States District Court, District of Connecticut (Nevas, J., February 10, 2004) (". . . the October 7, 2003, Order . . . was an agreed-upon solution that avoided court-ordered receivership for DCF as a remedy for the defendants' significant, undisputed, and repeated failures to comply with the 1991 Consent Decree, Manuals, and 2002 Transition/Exit Plan . . ."); In re Niasia M., Docket No. N05-CP01-02125-A, Superior Court for Juvenile Matters, Judicial District of New Haven at New Haven (Turner, J., November 12, 2004) ("Ms. Duran's testimony clearly established that the major issue Ejnar, Sr. [the father] faced in losing his child was his lack of housing. When asked what did she do to help him obtain housing her reply was a resounding "nothing . . . Ms. Duran further testified that she understood that she was under a legal obligation to provide reunification services to Ejnar Sr. and yet admitted that she failed to do so . . . the efforts by DCF to reunify Ejnar Sr. with his son were characterized by [DCF's] witness as ineffective and that she did nothing with regard to the most important issue which [led] to the filing of the TPR petition; homelessness, and that the few services which were offered by DCF were not very effective and were tantamount to an utter failure to provide rehabilitative services . . ."); In re J., Docket No. M08CP03-009268-A, Superior Court, Judicial Matters, District of Middlesex at Middletown (Baldwin, J., September 30, 2004) ("DCF's failure to act appropriately and promptly threatened [the c]hild, burdened foster families, disrespected parents and imposed unnecessary emotional and financial burdens on them. In the process DCF also failed to implement services . . . that were ordered by this court . . ."); In re Lindsey P., 49 Conn.Sup. 132, 149-52, 864 A.2d 888 (2004) ( 38 Conn. L. Rptr. 40) ("Notwithstanding the findings, the court does not enter an order of contempt. The court determines that a finding of contempt will not adequately address the significant issues presented in this case. Although the [c]ourt is not ordering that DCF be held in contempt, that does not mean that it finds the conduct of DCF, or its employees, to be acceptable. The conduct was outrageous and insensitive . . . Although the court does not enter a finding of contempt, under the inherent supervisory authority of the court, the court can deter similar conduct by DCF in the future."); In the Interest of Jessica M., Superior Court Juvenile Matters, Child Protection Session, at Middletown (Munro, J., February 17, 1999) ("This finding of the court does not excuse or vitiate the fact that the court (Petroni, J.) found DCF in contempt of court for failure to provide `intensive rehabilitation services." The issue before the court was whether a court order was adhered to by DCF.").
See also Sienkiewicz v. Ragaglia, 2008 Ct.Sup. 7381, 7390-91, No. CV03 0401770S, Superior Court, Judicial District of Fairfield at Bridgeport (Radcliffe, J., May 5, 2008):
Here, the acts of the officials, while perhaps displaying an institutional bias, and contempt for the desires of the parents, were nevertheless in compliance with all statutory mandates. Unlike Duschesne v. Sugarman, there can be no allegations, based upon these facts, that any managerial directives or policies in violation of law, caused a deprivation of constitutional rights. The claims of substantive due process violations, based upon the facts alleged, must also fail.
While the DCF actions, particularly as applied to Justin, may have unnecessarily separated the five-year-old from his parents, a belief strengthened following the hearing before Judge Eveleigh, that excess of caution cannot support a claim of a violation of substantive due process.
Some of such alleged exculpatory and/or relevant facts were that the maternal grandmother's open DCF case involving a younger sibling of the mother was due to close, e. g., DCF protective supervision was scheduled to end, on November 21, 2008 (on September 4, 2008, the mother and the father resided with the maternal grandmother); that as of September 4, 2008, Ember's biological father (who as set forth in the OTC affidavit was incarcerated) is not a part of Ember's life; that Ember and Mary were removed from the mother as a result of a domestic incident involving a maternal uncle, but that as of September 4, 2008, he was no longer living in the maternal grandmother's home; that despite the finding of Judge Olear that Dr. Livingston was credible and that she reported that Ember had a diagnosis of failure to thrive when she resided with the parents, the affidavit did not refer to an alleged contrary diagnosis of Ember's pediatrician who has consistently refused to testify in any matters before the court, or to other explanations for Ember's failure to thrive.
A respondent parent or his counsel who reviews and analyzes an OTC affidavit prepared by the social worker under time pressure as in this case, with the benefit of hindsight and time to parse such affidavit may discover one or more gaps in such affidavit or arguments in favor of vacating such OTC, but still may not have a basis for contempt even if a prior order binding on DCF or the worker could be identified. Noncompliance with an order is not always a basis for contempt. McGuire v. McGuire, 102 Conn.App. 79, 82, 924 A.2d 886 (2007). Contempt is described in our case law as a particularly harsh remedy:
It would seem to be more in a party's interest to attempt to secure a resolution based on persuading DCF to accept or include a parent's fair reading of all of the facts in the hope that leads to the return of a child rather than to focus on litigating with DCF to hold it in contempt and to seek to be awarded attorneys fees, especially because of potential sovereign immunity issues that may be an impediment to the award of such fees. In Doe v. Heintz, 204 Conn. 17, 32-33 (1987), the Supreme Court reversed an award of attorneys fees against the state:
Even where the monetary award is so minimal as the sum a prevailing party would be entitled to receive as taxable costs under General Statutes 52-257, this court has refused to sanction a monetary judgment against the state in the absence of explicit statutory authority. State v. Chapman, supra . . .
Our refusal to permit an award of so trifling a sum as taxable costs against the state on the ground that sovereign immunity foreclosed such an interpretation of the general terms of our taxation of costs statute strongly militates against approval of the much more substantial award of attorneys fees made in this case. See also, e. g., Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006):
It is well settled that the defense of sovereign immunity can be raised for claims brought directly against the state or against state employees acting in their official capacities.
"In order to constitute contempt, a party's conduct must be wilful . . . The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . ." The contempt remedy is appropriate on a finding of wilful conduct . . .
DaimlerChrysler Corp. v. Law, 284 Conn. 701, 720-21, 937 A.2d 675 (2007). See also In re Leah S., supra, requiring the trial court's orders to be sufficiently clear and unambiguous as a predicate for a finding of contempt for violation thereof.
The court therefore denied the motion for contempt filed by the attorney for the father.