Opinion
No. H12-CP09-012587-A
January 14, 2010
MEMORANDUM OF DECISION ON INTERVENOR'S MOTION TO DISMISS
On July 15, 2009, the petitioner, Jose B., a minor child two days shy of his eighteen birthday, which was July 17, 2009, filed ex parte motion with the Superior Court for Juvenile Matters at Hartford seeking an order of temporary custody in the commissioner of the Department of Children and Families (the department) and his immediate "emergency commitment to the department." He sought an immediate emergency commitment prior to the rendition of notice to either his parents or the Commissioner of the Department of Children and Families ("department"). He claimed that since he had been living apart from his parents for many years with an uncle, a situation authorized by his mother, any abridgement of his parent's constitutional rights to notice and an opportunity to be heard would be "short in duration," as their right to direct and control him would cease when he turned 18 on July 17. On July 15, 2009 the court (Olear, J.), denied both of the petitioner's ex parte motions. The petitioner also simultaneously filed a neglect and uncared for petition pursuant to General Statutes § 46b-129(a) alleging that he was (1) abandoned; (2) denied proper care and attention physically, educationally, emotionally or morally; and (3) uncared for on the basis of being homeless.
The petitioner's mother, who resides in Puerto Rico, had to be served by certified mail, the return of which was filed on or about August 26, 2009 and confirmed by the court on September 4, 2009. (Although the petitioner's affidavit dated July 15, 2009, stated that her address was "unknown.") Initially, petitioner's father was identified as unknown, but on July 27, 2009, the petitioner filed a motion for an order of notice, accompanied by an affidavit of diligent search on a Domingo B., last known to be residing in the Dominican Republic, in the International Herald Tribune. This motion was granted by the court and an affidavit of publication was filed with the court on August 26, 2009, Service by publication on the father was confirmed by the court on September 4, 2009. Neither parent has appeared. The petitioner made no effort to serve the Department of Children and Families with notice, and correctly maintains that the law does not require that a child or youth filing a neglect petition serve process on the department. It does, however, require, in General Statutes § 46b-129(a), that the court notify the department of "the time and place when the petition is to be heard not less than fourteen days prior to the hearing in question." On July 23, 2009, the office of the Attorney General received a facsimile copy of the neglect petition and thereafter moved to intervene on behalf of the department.
The court did not find, under General Statutes § 46b-129(b) that the petitioner was suffering from serious physical illness or serious physical injury or was in immediate physical danger from his surroundings or, that as a result of said conditions, the petitioner's safety was endangered and immediate removal from his surroundings was necessary to ensure his safety. An emergency ex parte commitment, absent any hearing, is not statutorily authorized. Under § 46b-129(j), prior to awarding custody of a child or youth to the department pursuant to an order of commitment, "the trial court must both find and adjudicate the child [or youth] on one of three grounds: uncared for neglected or dependent. The grounds are distinct, each statutorily defined . . . Adjudication on any of these grounds thus requires attendant findings, on the record, in support thereof . . ." In re Allison G., 276 Conn. 146, 159-60, 883 A.2d 1226 (2005).
On or about August 18, 2009, the department moved to intervene for the limited purpose of moving to dismiss the neglect and uncared for petition and simultaneously filed a motion to dismiss and accompanying memorandum of law. The motion to intervene claimed intervention as a matter of right, as the department was a necessary party to the action. See In re Devon B., 264 Conn. 572, 825 A.2d 127 (2003). On September 4, 2009, the court, relying on the analysis in Devon B., and the provisions of Practice Book § 35a-4 and General Statutes § 52-107, concluded that the department was a necessary party in both the adjudicatory and dispositive phases of a neglect and uncared for petition where either an order of temporary custody or commitment to it is sought, and granted the department's motion to intervene. The grounds asserted in the state's motion to dismiss are lack of jurisdiction over the subject matter and insufficiency of service of process, pursuant to Practice Book §§ 10-31(1) and (5). The court heard oral argument from the parties on the motion to dismiss on September 4, 2009. At the conclusion of oral argument, the court requested additional briefs. The last of these, the child's supplemental brief, was filed on October 28, 2009. Since the court finds that the claim of lack of subject matter jurisdiction is dispositive, it declines to address the department's claims of insufficient service of process.
Practice Book § 35a-4 states, "Other persons . . . may move to intervene in the dispositional phase of the case, and the judicial authority may grant said motion if it determines that such intervention is in the best interest of the child or youth or in the interests of justice . . . In making a determination upon a motion to intervene by any other person, the judicial authority shall consider: (1) the timeliness of the motion as judged by all the circumstances of the case; (2) whether the movant has a direct and immediate interest in the case; (3) whether the movant's interest is not adequately represented by existing parties; (4) whether the intervention may cause delay in the proceedings or other prejudice to the existing parties; (5) the necessity for or the value of the intervention in terms of resolving the controversy before the judicial authority.
General Statutes § 52-107 states, "The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of other; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.
"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." (Emphasis in original, internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991); Wilcox v. Webster Insurance, Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Paradigm Contract Mgt. Co. v. St. Paul Fire, 293 Conn. 569, 575, 979 A.2d 1041 (2009); Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). Mootness implicates a court's subject matter jurisdiction and may be raised at any point in the judicial proceedings. Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). A challenge to subject matter jurisdiction can be raised at any time and once the question of lack of jurisdiction of a court is raised, the court must fully resolve it before proceeding further with the case. Urban Redevelopment Commission v. Katsetos, 86 Conn.App. 236, 240-41, 850 A.2d 1233 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1289 (2005); In re Shonna K., 77 Conn.App. 246, 250-51, 822 A.2d 1009 (2003). The plaintiff, in this case, the petitioner, bears the burden of proving subject matter jurisdiction, whenever and however raised. Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
Recently, in Conboy v. State of Connecticut, 292 Conn. 642, 974 A.2d 669 (2009), the Connecticut Supreme court discussed the procedure a trial court should employ to decide a motion to dismiss based on lack of subject matter jurisdiction. "As summarized by a federal court discussing motions brought pursuant to the analogous federal rule, `[l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by disputed facts plus the court's resolution of disputed facts.' Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)." Id., 650-51.
"[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Columbia Air Services v. Department of Transportation, 293 Conn. 342, 347, 977 A.2s 636 (2009); Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "The motion to dismiss, admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however, the motion is accompanied by supporting affidavits containing undisputed facts, the court-may look to their content for determination of the jurisdiction issue and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001); Barde v. Board of Trustee, 207 Conn. 59, 62, 539 A.2d 1000 (1988).
In this case, the complaint is the child's neglect and uncared for petition, which is accompanied by a very brief summary of facts alleging that "Child is under eighteen years of age, a resident of Hartford, Conn., and is abandoned by his parents and uncle." See Practice Book Section 33a-1. His motion requesting that he be placed in the temporary custody of the department annexed his own affidavit, but this affidavit was not properly resubmitted for purposes of the court's determination of the motion to dismiss, as it is not attached to the petitioner's objection to the motion to dismiss or specifically referenced therein. Attached to the petitioner's objection to the motion to dismiss is another trial court decision involving the commitment of a 17-year-old child prior to her eighteenth birthday, In re B., Superior Court, juvenile matters at New Haven, Docket No. H2-CP-08-017916-A (January 8, 2009, Conway, J.), and unsworn excerpts from the department investigation protocol relevant to this matter. The court has considered In re B. and finds that case inapposite, and the court need not consider unsworn evidence.
Practice Book Section 10-29(b), applicable to juvenile matters pursuant to Section 34a-1(b), states, "When either the plaintiff or the defendant in any pleading subsequent to the complaint desires to make a copy of any document a part of his or her pleading, such party may, without reciting it therein, either annex it thereto, or refer to it therein, and shall serve it and file it in court with proof of service in the manner provided in Section 10-12 through 10-17."
Similarly, the department submitted a sworn affidavit from the child's aunt, which was not properly attached to or referenced in its motion to dismiss.
The two affidavits speak to the merits of the neglect and uncared for allegations, or the petitioner's so-called equitable claims, which the court finds are irrelevant to the consideration of whether or not the court has subject matter jurisdiction, as neither alters the undisputed facts that the petitioner's birthday, as alleged in the petition, is July 17, 1991, and that he attained the age of 18 on July 17, 2009. These are the determinative material facts that render the petitioner's neglect and uncared for petition moot.
For the following reasons, the motion to dismiss is granted for lack of jurisdiction over the subject matter.
The court's authority to commit a child or youth to the department as neglected or uncared for is strictly statutory. Our Supreme Court has long held that the state's authority to intervene in the family is statutory in nature and strictly limited by the terms of the statute. See In re Juvenile Appeal (83-CD), 189 Conn. 276, 284-86, 455 A.2d 1313 (1983) (analyzing the statutory provisions for temporary custody) and In re Juvenile Appeal, 189 Conn. 66, 83, 454 A.2d 1262 (1983) (analyzing the termination of parental rights provisions). Legislative enactments affecting family integrity must be narrowly drawn to express only the compelling, legitimate state interests at stake. Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 75, 35 L.Ed.2d 147 (1977). The state's only compelling interest as contemplated by the statutory scheme underlying action on behalf of neglected or abused children is in the protection of minor children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Juvenile Appeal (83-CD), supra, 189 Conn. 285.
General Statutes § 17a-101(a) states: "The public policy of this state is to protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provisions of services, where needed, to such child and family."
The statutory scheme, contained in Chapter 815t, which allows the court to grant temporary custody or guardianship of a child or youth to the department, defines a "child" as any person under 16 years of age, except for purposes of delinquency matters and proceedings, "child" means any person under 17 years of age who has not been legally emancipated or 17 years of age or older who, prior to attaining 17 years of age, has committed a delinquent act and, subsequent to attaining 17 years of age, violates any order of the Superior Court or any condition of probation ordered by the Superior Court with respect to such delinquency proceedings or willfully fails to appear in response to a summons in a delinquency proceeding. General Statutes § 46b-120(1), as amended by Public Act 09-7 of the September special session. "Youth" is defined as any person 16 or 17 years of age who has not been legally emancipated. General Statutes § 46b-120(2). Only a "child" or "youth" may be found neglected or uncared for. General Statutes §§ 46b-120(8) and (9).
The purpose of a neglect or uncared for proceeding is to insure a child's or youth's safety and to secure a permanent placement for such child or youth with one or both parents, biological relatives, foster care or an institutional setting. "A neglect petition and concomitant request for an order of commitment are not a typical civil action. A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named." In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999). "Accordingly, `relief' in this context takes on a somewhat different meaning, and the petitioner's interests in seeking an adjudication and disposition upon filing a petition do not fit neatly with the aggrievement rubric." In re Allison G., supra, 276 Conn. 158-59.
A primary goal of the child protection system, as expressed in General Statutes § 17a-101(a), is to strengthen the family and make the home safe for children by enhancing parental capacity. Removal of children from the home must only occur when necessary. The department is required to make reasonable efforts to prevent the removal of a child from the home. General Statutes § 46b-129(b)(2). As alternatives to commitment, the court, by way of disposition, may place the child in the custody of a parent or guardian under protective supervision by the department, or transfer the child's guardianship to some other suitable or worthy person. Young adults cannot be the subject of such custodial orders. An order of commitment, by law, triggers a requirement that the court issue specific steps to facilitate the return of the child or youth to the custody of the parent, a set of comprehensive directives that are a legal nullity when the child or youth becomes an adult. General Statutes § 46b-129(j); In re Allison C., supra, 276 Conn. 161. Prior to a court granting a termination of parental rights petition, the court must also find by clear and convincing evidence that the department made reasonable efforts to reunify the child with the parent. General Statutes § 17a-112(j). Many core requirements to foster the protection and security of neglected or uncared for children or youth have no applicability to such persons once they attain adulthood at the age of 18.
Only when dispositions other than commitment are not possible, and the goal of reunification can no longer occur, is a committed child, upon passing care at age 18, given the opportunity to consent to the receipt of continued services from the department. Section 46b-129(j) permits a court, upon finding and adjudging that any child or youth is uncared for, neglected or dependent, to commit such child or youth to the department. A commitment "shall remain in effect provided the child or youth has not reached the age of eighteen or, if attending secondary school, technical school, a college or a state-accredited job training program, until the age of twenty-one if the youth consents." The youth, defined only as a person age 16 or 17 would usually consent prior to turning eighteen for the continuation of department services on a voluntary basis. Of course, the young adult receiving extended services must meet certain, conditions as established by department policies. General Statutes § 17a-112(g) lends some clarity to what the legislature intended in § 46b-129(j) in allowing commitments to "remain in effect" after the youth attains 18 until reaching age 21. In construing a statute, the "fundamental objective is to ascertain and give effect to the apparent intent of the legislature." American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 202, 937 A.2d 1184 (2008). In searching for the legislative intent, a court looks "first to the text of the statute itself and its relationship to other statutes." Id., citing General Statutes § 1-2z. If the text of the statute is not clear and unambiguous, it is appropriate to look to the statute's ". . . legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 679, 849 A.2d 813 (2004). "In determining the legislative intent of a particular statute, we also look to other statutes governing the same or similar subject matter, for it is well established that we consider the statutory scheme as a whole and presume that the legislature intended to create a harmonious body of law." (Internal quotation marks omitted.) Interlude, Inc. v. Skurat, 266 Conn. 130, 143, 831 A.2d 235 (2003).
Although the department has established policies to extend services to youth who are committed prior to attaining the age of eighteen after they turn eighteen until they attain the age of 21, the decision to continue to afford services is a discretionary one that has never been wholly mandated by state or federal law. The petitioner's contention that he is entitled to these services is overstated. For example, to qualify for admission to the department's community housing assistance program (CHAP), not only must the youth be DCF committed at the time of entry into the program or committed at the time of the youth's eighteen birthday, the youth also must have obtained a high school diploma, successfully completed a DCF approved Life Skills Program, signed a desire to receive and cooperate with department services and exhibited adequate social, behavioral and life skills per an assessment by an Adolescent Specialist and the case record. Continuing eligibility for the CHAP program requires that the youth, upon attaining the age of eighteen, had a case with the department that resulted in a commitment prior to the date the youth reaches the age of majority. As part of its policy, the department retains the discretion to discharge a youth from the CHAP program who passes from care or has had commitment revoked by the court. See Department of Children and Families Policy Manual, "Adolescent Services," Policy #42-5-3 (May 15, 2007) at www.ct.gov/dcf.
The plain language of § 17a-11(g) authorizes the department, " in the commissioner's discretion," to offer further care and support to "any person already under the care and supervision of the Commissioner of Children and Families who has passed such person's eighteenth birthday but has not yet reached such person's twenty-first birthday . . ." (Emphasis added.) Any person remaining voluntarily under the supervision of the commissioner is entitled to a written plan for care and treatment, and review of such plan, in accordance with section 17a-15. What additional care or treatment is to be provided is not expressly mandated. If the person is aggrieved by the department's plan, she or he must ask for a hearing within thirty days following a written request for the same directed to the commissioner. These statutory provisions authorizing the department to provide services to young adults do not contemplate any direct right to the provision of services as part of the prior disposition in the child protection matter, which is deemed closed once the subject of the case turns 18. See In re Christina V., Superior Court, juvenile matters at Hartford, Docket No. H12-CP05-010281-A (April 11, 2007, Dannehy, J.) The only court remedy statutorily afforded is an administrative appeal pursuant to § 4-183. See General Statutes § 17a-15(c) and (e).
The court concludes it is only empowered to issue orders of commitment directed to the department and parents or guardians for children or youth age 17 or younger, subsequent to their adjudication as neglected, uncared for or dependent. It has no authority to order a commitment of a person who is 18 years of age or older, even retroactively. If the legislature intended that persons over 18 could be committed so long as the circumstances that rendered them neglected, uncared for or dependent occurred prior to their attaining the age of eighteen, presumably, it knew how to accomplish this, and it has, in fact, provided for the imposition of delinquency consequences on persons above the general jurisdictional age of 16 under certain expressed circumstances. See General Statutes § 46b-120(1), as amended by Public Act 09-7 of the September special session. In the absence of any such explicit grant of authority, the court cannot read one into the statutory scheme. Santopietro v. City of New Haven, 239 Conn. 207, 215, 682 A.2d 106 (1996) ("[i]n applying a statute this court is bound by its terms and cannot read into its plain language exceptions that the legislature has not created."); State v. Orr, 291 Conn. 642, 656, 969 A.2d 750 (2009).
Since the court is no longer empowered to grant the only relief provided by law, the department claims the issue is moot and the matter should be dismissed. Mootness raises the issue of a court's subject matter jurisdiction and is therefore appropriately considered even when not raised by one of the parties." Lyon v. Jones, 291 Conn. 384, 392, 968 A.2d 416 (2009); In re Jorden R., 293 Conn; 539, 555, 979 A.2d 469 (2009). "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction. There is a four part test for justiciability established in State v. Nardini, 187 Conn. 109 (1982). Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interest of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." In re Melody L., 290 Conn. 131, 170, 962 A.2d 81 (2009); In re Jorden R., supra, 555.
The case of In re Elizabeth H., 45 Conn.App. 508, 696 A.2d 1291, cert. denied, 243 Conn. 903, 701 A.2d 328 (1997), cert. denied, 523 U.S. 1137, 118 S.Ct. 1840, 140 L.Ed.2d 1091 (1998), discussed mootness in the situation where the parents of two minor children, previously adjudicated neglected, had attained the age of 18 during the pendency of the parents' appeal. The parents were seeking the reversal of the court's neglect determination. Notwithstanding that their daughters had reached adulthood and no order of the court could affect them, the parents argued that their appeal was not moot because of two exceptions to the mootness doctrine: collateral consequences and the claim that their grievances were "capable of repetition yet evading review."
Where there is no direct practical relief available, the "collateral consequences doctrine acts as a surrogate . . . affording the litigant some practical relief . . . where there is some indirect or collateral relief that a decision in the case in question will provide. Williams v. Ragaglia, 261 Conn. 219, 237, 802 A.2d 778 (2002). In this case, the petitioner did not expressly claim the applicability of the collateral consequences exception to the mootness doctrine, although he does claim he was entitled to benefits that would accrue to him were he to be committed to the department effective as of some date preceding his eighteen birthday. In fact, in paragraph 14 of his motion for an emergency commitment, he concedes that he is not entitled to services from the department until he reaches the age of 21 unless he is committed prior to attaining the age of 18, and thus requests that the court enter an unprecedented retroactive commitment, for which he cites no statutory or other legal authority. The court finds that there are no identifiable concrete, prejudicial consequences from which the court can provide him any practical direct or indirect relief to justify exemption from dismissal on the ground of mootness. Bylaw, he has no right to extended treatment or services until he is 21 unless he is committed to the department prior to attaining the age of 18.
Even if the court had the authority to consider an adjudication and disposition retroactively or after he turned 18, it would be speculative to find any prejudicial collateral consequences, which would first require the court to assume that the petitioner would have been: (1) adjudicated neglected or uncared for; (2) committed to the department, (as opposed to the imposition of some other dispositional alternative); and (3) subsequent to such a commitment, deemed by the commissioner, acting within her discretion, to be a "person who would benefit from further care and support" pursuant to § 17a-11(g). It is also speculative whether he would have maintained eligibility for services by consenting to and complying with department directives and conditions for three additional years.
The petitioner does argue, as did the parents in In re Elizabeth H., that his case is not moot because his situation is "capable of repetition yet evading review."
In re An C., 833 N.E.2d 1008 (Ill. 2005), involved a case where the parties asked the court to decide whether the Illinois trial court had jurisdiction to rule on a pending petition for adjudication of "wardship," a dependency proceeding much like Connecticut's neglect, uncared for and dependent proceedings, after the two subject children became eighteen years old. The trial court held that even though the two girls were already in the temporary custody of the Illinois Department of Children and Family Services, it lost jurisdiction once the girls reached age 18. The Illinois Appellate Court declined to address a moot issue under one of that state's mootness exceptions, which requires that "the question involved is of a public nature, the circumstances are likely to recur, and an authoritative determination for the future guidance of public officers is desirable." (Citation omitted.) Id., 204. The Illinois Appellate Court agreed and determined that the issue was moot because the court had no authority to grant adults who while still children had been the subject of the petition, any relief, even if the court had jurisdiction to adjudicate the petition.
Connecticut's three-pronged approach to the "capable of repetition, yet evading review" doctrine is slightly different. "We note that an otherwise moot question may qualify for review under the capable of repetition, yet evading review exception. To do so, however, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the [case] must be dismissed as moot." (Citations omitted; internal quotation marks omitted.) Conetta v. Stamford, 246 Conn. 281, 296-96, 715 A.2d 756 (1998); Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995).
"The basis for the first requirement derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome." (Citation omitted; internal quotation marks omitted.) State v. Boyle, 287 Conn. 478, 487 n. 3, 949 A.2d 460 (2008); In re Melody L., supra, 290 Conn, 172.
The petitioner in this case filed only a neglect and uncared for petition, and admits that if he is not committed prior to attaining the age of 18, or committed retroactive to some date when he had not yet attained the age of 18, the court is not empowered to commit him to the department, and the department is not obligated to offer him services beyond age 18. Although he expresses aggrievement with the department for failing to meet what he deems are its statutory obligations, a neglect and uncared for petition is not the proper vehicle to raise that issue or to seek whatever relief he claims. In other words, if the first requirement requires that the claimant actually be challenging the actions of the other party, the petitioner has failed to properly do so in his pleading. Moreover, the situation alleged by the petitioner is not one of such limited duration that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before litigation can be concluded. In fact, there is a reasonable likelihood that the question presented in this case may arise again in the future. Central to the petitioner's argument is the assumption that the law creates an affirmative obligation upon the state agency charged with protecting children to always file a petition with the court if it determines one or more grounds exist. This argument has been raised in both federal and state courts in actions alleging the child protection agency's failure to act appropriately in protecting a child from abuse. See Teresa T. v. Ragaglia, 272 Conn. 734, 865 A.2d 428 (2005); Prigge v. Ragaglia, 265 Conn. 338, 828 A.2d 542 (2003); Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). The petitioner still may have the opportunity to file a similar cause of action. Whether or not the department is obligated to seek the temporary custody and commitment of every allegedly abandoned 17-year-old is still susceptible to review in the context of a timely claim for damages, or injunctive, declaratory or equitable relief. Practice Book § 10-27 provides that "[a] party seeking equitable relief shall specifically demand it as such, unless the nature of the demand itself indicates that the relief sought is equitable relief. Where the nature of the case and the nature of the plaintiff's demand is such that equitable relief is clearly being sought, a specific demand for equitable relief is not necessary. (Citations omitted; internal quotations omitted.) Giulietti v. Giulietti, 65 Conn.App. 813, 859-60, 784 A.2d 905 (2001). In the context of the present petition, which is a very restricted, statutory cause of action authorized by law, no such issue can be raised in law or in equity.
See Miller v. Eagan, 265 Conn. 301, 828 A.2d 549 (2003), for a thorough discussion on the various ways of bringing actions against state employees alleged to have acted unconstitutionally, exceeded their statutory authority, or engaged in misconduct. § 46b-129(j).
Assertions in memoranda of law and other submissions are not a substitute for a properly drafted complaint. The petitioner's argument that the department failed to perform its statutory duty does not evade review, as it may be raised in a different cause of action. Such a claim is not one of the statutory grounds for an adjudication under § 46b-129. The petitioner can, and should, perfect such a claim by properly alleging it in an appropriate cause of action and properly serving department employees. The court finds no basis to extend jurisdiction in this case based on equitable claims, and declines to address them when they have not been and cannot be pled.
With respect to the second prong, the petitioner admitted in his motion for an emergency commitment that his situation is unique. He has not alleged, nor does the court have any reason to believe it likely, that he will again be subjected to the conditions described in his petition, nor does the court have any reason to conclude that the mere fact that he sought to petition for his own commitment, just days before he turned eighteen, makes him a likely surrogate for an identifiable group likely to be subjected to the same conditions. Connecticut's courts have seen few such challenges to the court's authority to issue orders to the department or the parents after children attain the age of eighteen. See In re Elizabeth H., supra, and In re Christina V., supra. In addition, the court notes that another child or youth similarly situated may be able to avoid the effects of the department's inaction by filing a more appropriate cause of action. The court is not persuaded that a substantial number of cases raising a question about the department's failure to protect a neglected or uncared for child will evade review. "As noted in Loisel, the `evading review' concept implicates the notion of time and its likely effect on a court's ability to review an action or claim. Thus, according to Loisel, if an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented does not have a strong likelihood of becoming moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome." (Internal quotations omitted; citations omitted.) Ruffin v. Commissioner of Corrections, 89 Conn.App. 724, 728, 874 A.2d 857 (2005).
This case of In re Shonna K., supra, is not controlling. In that case, a formerly committed child who had attained the age of eighteen brought a declaratory judgment action in the juvenile court seeking to enforce a claimed contractual agreement with the department to continue to afford her specific services beyond her eighteenth birthday. The Appellate Court did not reach the merits of the enforceability of her claim, but only determined that an agreement had been reached which could afford Shonna practical relief and therefore, the case was not moot. Unlike Shonna K., the petitioner was not previously committed and he has not filed a distinct action against the department seeking declaratory, injunctive, equitable or other relief. Shonna K. is not a case where a person over age 18 and not previously committed was retroactively seeking a commitment pursuant to an action under General Statutes § 46b-129. See also In re Christina V., supra.
A consideration of the third prong, that this is an important issue of public policy, if anything, calls for judicial restraint under these circumstances. Unlike the formerly committed children in cases such as In re William D., 284 Conn. 305, 933 A.2d 1147 (2007) (respondent contested the extension of his commitment but turned eighteen during the pendency of the appeal), Earl B. v. Commissioner of Children Families, 288 Conn. 163, 952 A.2d 32 (2008) (convicted delinquent objected to the commissioner's dismissal of his request for a hearing to object to his treatment plan but turned eighteen during the pendency of the appeal) and In re Steven M., 264 Conn. 747, 826 A.2d 156 (2003) (convicted delinquent who turned 18 contested the department's transfer of his custody to the department of correction), there is nothing in this case that requires the establishment of a standard governing the department's statutory duty to care of the children in its custody, or necessarily calls for the court to interpret the statute in order or provide guidance to public officials in the future. In fact, the mootness issue regarding the court's lack of authority to act on behalf of children who reach 18 has already been addressed in In re Elizabeth H., supra. The issue of whether or not the department is always statutorily obligated to file a petition if grounds to file exist has been addressed in Teresa T. v. Ragaglia, supra. Here, the court is statutorily prohibited from providing the petitioner or anyone else similarly situated, any practical relief. The petitioner is actually calling on the court to modify the plain language of a statutory cause of action. A court "must construe a statute as it finds it, without reference to whether it thinks the statute would have been or could be improved by the inclusion of other provisions." In re Steven M., supra, 264 Conn. 757. If, as noted by the concurring opinion of Justice Tully in In re An C., supra, 205-07, there is "an unacceptable gap in the safety net created by [legislative Juvenile Court enactments] to protect the children of this state," it is up to the legislature, not the courts, given the fiscal obligations and social implications for young adults and their families, who may not wish any further involvement with the department, to determine whether or not the court should, under some circumstances, have the authority to order the department to take custody of or provide services to an adult previously neglected or uncared while still a minor. As suggested by Justice Tully, the legislature could fill the gap and provide for the disposition of cases that were properly filed before the minor's eighteen birthday, even if the minor reaches that age before adjudication and/or disposition.
The court finds that the petitioner meets none of the three criteria to permit its assumption of jurisdiction under the "capable of repetition, yet evading review" exception. Because there is a claim for relief that the petitioner or some other similarly situated individual could readily perfect through proper service on the correct parties, and that by doing so, could render the question capable of review, because it is both unlikely and totally speculative that the petitioner or anyone for whom he might be deemed a surrogate will again be subject to the same conditions alleged in his complaint, and because the issue is not a matter of public policy which appropriately calls for judicial resolution or direction, the petitioner may not avail himself of the "capable of repetition, yet evading review" doctrine as a basis for avoiding dismissal of his neglect and uncared for petition as moot.
Conclusion
Since the petitioner has reached the age of 18, this court lacks subject matter jurisdiction over his petition to have himself adjudicated neglected and/or uncared for and committed to the department. Jurisdiction for the commitment of a "child" or "youth" is statutorily limited to youth aged 17 or younger. The limitation on the court's statutory authority to enter dispositions of commitment only for children or youth who are under 18 is consistent with the general provision in General Statutes § 1-1d that "any person eighteen years of age or over shall be an adult for all purposes whatsoever." Connecticut law does not grant the courts any authority to issue a retroactive commitment on behalf of an adult, or order an adult committed if the petition is filed before the adult attained the age of 18. That would be subjecting an adult to the guardianship of the department, an untenable proposition, which is why the law states that youth committed before they turn 18 only remain "committed" up to the age of 21 if they consent to the department's discretionary provision of services. An actual controversy must exist and here, events have occurred that preclude the court from granting the petitioner any practical relief through disposition of the petition on its merits. The action is moot. Furthermore, there is no exception to the mootness doctrine that applies to this petitioner's circumstances, as the limitation on the court's authority is not a question of jurisdiction but rather, the lack of authority to order a remedy for any minor who is neglected, abused or uncared for while under 18, but turns 18 before the trial court can properly order a disposition.
§ 46b-129(j).
Accordingly, the motion to dismiss the child's neglect and uncared for petition is granted.