Opinion
No. K09-CP03-009149-A
February 17, 2005
MEMORANDUM OF DECISION ON PETITIONER'S MOTION TO DISMISS
On December 16, 2003, the commissioner of the department of children and families (DOE) filed a petition with the Superior Court for Juvenile Matters alleging that Jaysean S., a minor child, was being neglected by the respondent, his mentally retarded mother, Taneesha S. At the time the petition was filed, the respondent was receiving services from the department of mental retardation (DMR). On September 22, 2004, the respondent moved to implead Peter O'Meara, the DMR commissioner (commissioner) as a necessary party pursuant to Practice Book § 10-11. The motion was granted by the court, Cosgrove, J., and DMR was directed to appear on December 10, 2004. On December 6, 2004, the commissioner filed a motion to dismiss, with a memorandum in support, claiming that it was immune from inclusion in this action pursuant to the doctrine of sovereign immunity and that the court therefore lacked subject matter jurisdiction. No further pleadings were submitted by the respondent mother.
Practice Book § 10-11 states, in relevant part: "(a) A defendant in any civil action may move the court for permission as a third party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to such defendant for all or part of the plaintiff's claim against him or her . . ."
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. A determination regarding a trial court's subject matter jurisdiction is a question of law." (Citations omitted; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736-37, 846 A.2d 831 (2004).
In the present matter, it is uncontested that the respondent is mentally retarded and has received assistance from DMR. The respondent contends that it is "well settled" that DCF must provide services to the respondent parent so that the parent may rehabilitate herself and successfully parent her child, and that DCF has acknowledged that the DMR case manager plays a "crucial part" in her efforts to live independently and raise her child. Thus, the respondent posits, if DCF has the burden of providing services to her, and some of those services are currently being provided by DMR, then DMR is a necessary party to this action.
"Necessary parties . . . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties." (Internal quotation marks omitted.) 1525 Highland Associates, LLC v. Fohl, 62 Conn.App. 612, 618, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137 (2001). "[A] party is necessary if its presence is absolutely required in order to assure a fair and equitable trial." (Internal quotation marks omitted.) Biro v. Hill, 214 Conn. 1, 6, 570 A.2d 182 (1990).
"The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court." (Internal quotation marks omitted.) Washington Trust Co. v. Smith, 241 Conn. 734, 747, 699 A.2d 73 (1997). "[T]he trial judge's discretion should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." (Internal quotation marks omitted.) Sturman v. Socha, 191 Conn. 1, 7, 463 A.2d 527 (1983).
In support of her motion to implead DMR as a necessary party, the respondent cites the Connecticut Supreme Court's decision in In re Devon B., 264 Conn. 572, 825 A.2d 127 (2003). In re Devon B. is factually similar to the present matter in that the respondent mother in that case was a party to child neglect proceedings instituted by the DCF and also received services from DMR. While the matter was pending before the trial court, the respondent filed a motion to cite in DMR as a necessary party pursuant to Practice Book § 9-18 on the basis that the court would not be able to issue meaningful steps for reunification unless DMR was joined as a party. The court denied the motion. The trial court subsequently entered a judgment adjudicating the respondent's child to be neglected and committing him to the custody of the petitioner, DCF. At the time of adjudication, the trial court also issued "specific steps" for the mother to follow in order for her to potentially regain custody of her child.
The "specific steps" ordered by the trial court in In re Devon B., supra, 264 Conn. 579, were: "(1) work with and attend all meetings with the petitioner [DCF]; (2) inform the petitioner of any changes in her contact information, such as her address and telephone number; (3) attend parental and individual counseling; (4) continue to work with the department of mental retardation; and (5) continue working with the 'R Kids program." (Emphasis added.)
On appeal, the respondent claimed that because she was mentally retarded and had been receiving services from DMR, the trial court improperly denied her motion to cite in that department. The Supreme Court reversed and remanded the case on the ground that the trial court abused its discretion in denying the respondent's motion to cite in DMR as a necessary party. The court reasoned that: the trial court was required by General Statutes § 46b-129 to order specific steps that the respondent needed to take to regain custody of her child; DCF was obligated by § 46b-129 to assist the respondent in regaining custody of her child; the services necessary to allow the respondent mother to regain custody could best be provided by DMR; and the trial court could not order DMR to provide those services without making it a necessary party. See In re Devon B., supra, 581-86. The respondent contends that In re Devon B. is determinative of the present matter, in that DCF is also charged with providing services to her and some of those services can, by definition, only be provided by DMR.
General Statutes § 46b-129(j) provides, in relevant part: "Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families . . . The court shall order specific step which the parent must take to facilitate the return of the child or youth to the custody of such parent." (Emphasis added.)
Under the particular facts of In re Devon B., the Supreme Court noted that the respondent was both mentally retarded and homeless, and that DCF was not in a position to help her in either regard. "[I]t is evident that residential placement — which would solve the respondent's homelessness — as well as coordination of services, such as parenting classes, best can be provided by the department of mental retardation. Unlike that department, the petitioner [DCF] is not charged statutorily with providing services to mentally retarded persons, nor is it equipped to provide such services. Compare General Statutes § 17a-3 with General Statutes §§ 17a-210(a) and 17a-217(a)" In re Devon B., supra, 264 Conn. 582-83. The Supreme Court further reasoned that adding DMR as a necessary party was imperative, as it would be futile to order the respondent mother, herself, to continue to work with the agency. "Ordering the respondent to continue to work with the department of mental retardation does not ensure that that department will provide her with the necessary services to help her regain custody of her child . . . By adding the department as a party, the trial court would have the authority that it otherwise lacks to compel that department and the petitioner to work together, something that is not possible with the department's current nonparty status." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 585-86. Therefore, the court concluded, DMR is a necessary party "because the trial court cannot proceed to a decree and do complete and final justice . . . without its joinder." (Citation omitted; internal quotation marks omitted.) Id., 584.
General Statutes § 17a-3 provides, in relevant part: "The department [of children and families] shall plan, create, develop, operate or arrange for, administer and evaluate a comprehensive and integrated state-wide program of services, including preventative services, for children and youth . . . In furtherance of this purpose, the department shall . . . (C) provide appropriate services to families of children and youth as needed to achieve the purposes of sections 17a-1 to 17a-26, inclusive, 17a-28 to 17a-29, inclusive, and 17a-51 . . ."
The department of mental retardation's functions are set forth in § 17a-210. It provides, in relevant part, "(a) . . . The Department of Mental Retardation . . . shall be responsible for the planning, development and administration of complete, comprehensive and integrated state-wide services for persons with mental retardation . . . The commissioner shall be responsible for: . . . (1) Planning and developing complete, comprehensive and integrated state-wide services for persons with mental retardation; (2) the implementation and where appropriate the funding of such services; and (3) the coordination of the efforts of the Department of Mental Retardation with those of other state departments and agencies, municipal governments and private agencies concerned with and providing services for persons with mental retardation." (Emphasis added.)
Section 17a-217 (a) indicates the types of programs provided for retarded individuals. In relevant part: "The Department of Mental Retardation shall develop day care programs, day camp programs and recreational programs for children and adults with mental retardation . . . For the purposes of this section: (1) A day care program . . . (B) may provide adolescents and adults with mental retardation with an activity program which includes training in one or more of the following areas: (i) Self-care, (ii) activities of daily living, (iii) personal and social adjustment, (iv) work habits, and (v) skills, speech and language development . . ."
As the Supreme Court notes, without joinder, the court would have no jurisdiction over DMR and could not direct any enforceable orders toward it. In re Devon B., supra, 264 Conn. 585, citing Graham v. Zimmerman, 181 Conn. 367, 373-74, 435 A.2d 996 (1980) and East Haven v. AFSCME, Council 15, Local 1662, 212 Conn. 368, 373, 561 A.2d 1388 (1989).
The respondent acknowledges that she "is not as significantly impaired as was the respondent in Devon B.) but asserts that she qualifies for services from DMR and that DCF has acknowledged that her DMR case manager plays a "crucial part" in her efforts to "live independently and raise her child." If the respondent is dependent upon the services that DMR provides, and needs those services to achieve the ability to maintain or regain custody of her child, then it is submitted that "the department of mental retardation's joinder is absolutely required in order to assure a fair and equitable result." (Internal quotation marks omitted.) In re Devon B., supra, 586.
The commissioner's contention that the doctrine of sovereign immunity precludes the department's participation as a party to this action presents a different issue, and one that was not addressed by the majority or the dissent in In re Devon B. Sovereign immunity is "a well-established rule of the common law that a state cannot be sued without its consent." (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 263 Conn. 74, 78, 818 A.2d 758 (2003). The doctrine "rests on the principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003).
The respondent's motion to implead was directed to O'Meara, in his capacity as commissioner of the department of mental retardation. Suit against him, as a state officer, is effectively suit against the state itself. "We have . . . recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Internal quotation marks omitted.) Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987).
"In its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and there can be no legal right as against the authority that makes the law on which the right depends . . . This absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as wells as by judicial decisions in others." (Internal quotation marks omitted.) Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987). Thus "a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citation omitted.) Miller v. Egan, supra, 265 Conn. 314.
The commissioner maintains that neither of these exceptions are applicable here. First, he claims that the state has not waived its immunity by appropriate legislation, in that the only statute that permits a direct cause of action against the DMR in superior court, i.e. General Statutes § 19a-24, applies only to cases seeking money damages and only when an official act or omission of the DMR is at issue. Second, he states that the other limited exception, when suits against the state complain of unconstitutional acts by state officials, does not apply as the respondent does not claim that DMR infringed upon any constitutionally protected interest. Moreover, the commissioner contends that In re Devon B., supra, 264 Conn. 572, does not control the motion pending before the court in that the issue of DMR's sovereign immunity was neither raised nor addressed in that case.
Minimal case law exists addressing motions to cite DMA as a necessary party, particularly in juvenile matters. Notably, in those cases that have granted a plaintiff's motion to cite DMR as a necessary party, the courts have not considered the issue of sovereign immunity. See In re Isaiah B., Superior Court, judicial district of Middlesex Child Protection Session at Middletown, Docket No. CP 03 013615 (September 29, 2003, Rubinow, J.) ( 38 Conn. L. Rptr. 32) and Martin v. O'Meara, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV 97 0160364 (March 18, 1998, Karazin, J.) ( 21 Conn. L. Rptr. 537).
The question of whether the commissioner can be made a party to the action pursuant to the statutory waiver provision of § 19a-24 is controlled by Duguay v. Hopkins, 191 Conn. 222, 464 A.2d 45 (1983). In relevant part, § 19a-24 provides: "(a) Any claim for damages in excess of seven thousand five hundred dollars on account of any official act or omission of . . . the Commissioner of Mental Retardation or any member of [his staff] . . . shall be brought as a civil action against the commissioners in their official capacities . . ." In Duguay, the Supreme Court determined that § 19a-24 permitted the plaintiff to bring a negligence action against the commissioner directly, without first obtaining the claims commissioner's permission to do so. The court construed the statute broadly and concluded that it applied to "all civil actions against . . . the commissioner of mental retardation or any members of [his staff]. By its enactment the legislature has waived the sovereign immunity of the state in those cases to which the statute applies." Duguay v. Hopkins, supra, 232. As interpreted by the Superior Court, by stating that § 19-24 applied to "all civil actions . . . to which the statute applies," the Supreme Court in Duguay determined that "§ 19a-24 constituted a general waiver of sovereign immunity as concerns the negligent doings of the Commissioner of Mental Retardation." Swan v. Residential Management Services, Inc., Superior Court, judicial district of Waterbury, Docket No. 127097 (June 10, 1996, Sullivan, J.) ( 17 Conn. L. Rptr. 211). Although juvenile matters pertaining to uncared for and neglected children are civil matters; see In re Samantha C., 268 Conn. 614, 641, 847 A.2d 883 (2004); and General Statutes § 121(a); the respondent does not seek to keep the commissioner in the action on the basis of negligent conduct on his part. Moreover, rather than being a direct action by a party against DMR, this action was commenced by DCF, and the respondent presumably sought to implead DMA in order to compel DMR to provide services to her. Therefore, she cannot rely on § 19a-24 for an exception to sovereign immunity.
"When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. See General Statutes §§ 4-141 through 4-165b . . . This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions." Miller v. Egan, supra, fs 265 Conn. 317-18.
The second exception to sovereign immunity, brought in actions for declaratory or injunctive relief, requires a showing that the state officer against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute. The Supreme Court has recognized that "[b]ecause a court may tailor declaratory and injunctive relief so as to minimize interference [with the government's performance of its functions], and in order to afford an opportunity for voluntary compliance with the judgment, actions that seek injunctive or declaratory relief against a state officer acting in excess of statutory authority or pursuant to an unconstitutional statute do not conflict with the policies underlying the doctrine of sovereign immunity." (Internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 314. It is difficult to bring the present matter within the confines of this exception, however, as there is neither any allegation nor any indication that the commissioner has acted in excess of his statutory authority. As such, this action should fall outside of the first two exceptions to sovereign immunity.
Whereas the respondent may not rely on either the provisions of § 19a-24, or a claim that the commissioner acted in excess of statutory authority to circumvent the DMR's sovereign immunity, the respondent is not without other means. The Connecticut Supreme Court has stated that "the state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of necessary implication." (Internal quotation marks omitted; emphasis in original.) Martinez v. Dept. of Public Safety, supra, 263 Conn. 86. By force of necessary implication, §§ 17a-3 and 17a-210 would compel DMR's participation in the present matter, as DCF could not act alone in providing the services that the respondent requires. The Supreme Court determined in In re Devon B. that it was within the trial court's discretion to determine that DMR was a "necessary party because the trial court cannot proceed to a decree, and do complete and final justice . . . without its joinder." (Citation omitted; internal quotation marks omitted.) In re Devon B., supra, 264 Conn. 584. This court has reached the same conclusion.
Finally, as the court noted in In re Devon B., the specific steps that the respondent may be required to follow in order to achieve reunification with her child in the context of a neglect proceeding "are considered to be a `fair warning' to a parent of the potential termination of parental rights in subsequent proceedings." Id., 584. Thus, they potentially implicate the respondent's constitutional right to raise her child in as much as "[t]he requirement of reunification efforts provides additional substantive protection for any parent who contests a termination action, and places a concomitant burden on the state to take appropriate measures designed to secure reunification of parent and child . . . This requirement is based on the well-settled notion that [t]he right of a parent to raise his or her children [is] recognized as a basic constitutional right . . . Accordingly, it has been held that the due process clause of the fourteenth amendment to the United States constitution applies when a state seeks to terminate the relationship between parent and child." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id. In re Devon B. and other cases that have found that it is appropriate to grant motions to cite in DMR as a necessary party have not addressed the issue of DMR's sovereign immunity. Pursuant to the principles that apply to the exception to the doctrine of sovereign immunity for actions where the legislature has waived the doctrine by force of necessary implication, the respondent can circumvent the doctrine of sovereign immunity with respect to the state's obligation to provide her with services through DCF and DMR, in that DCF could not assist the respondent per its statutory mandate without the special input of DMR. Further, pursuant to In re Devon B., this court has determined that DMR is a necessary party to the proceedings. DMR's motion to dismiss is hereby denied.
By the Court
Cosgrove, J.