Opinion
No. K09-CP03-008911-A
September 27, 2004
MEMORANDUM OF DECISION
On July 19, 2004, the petitioner Department of Children and Families ("DCF") filed a petition to terminate the parental rights of the respondent mother (sometimes hereinafter referred to as "the TPR petition"). The petitioner annexed a document entitled Summary of Adjudicatory Facts For Termination of Parental Rights ("Summary").
As defined in Practice Book Section 26-1(j), a petition is "a formal pleading, executed under oath alleging that the respondent is within the judicial authority's jurisdiction to adjudicate the matter which is the subject of the petition by reason of cited statutory provisions and seeking a disposition." In addition, "[e]xcept for a petition for erasure of record, such petitions invoke a judicial hearing and shall be executed by any one of the parties authorized to do so by statute, provided a delinquency petition may be executed by either a probation officer or juvenile prosecutor." The petition for termination of parental rights is currently designated as form JD-JM-40, Rev. 9-2000. The court's jurisdiction is based on either the child being in the custody of DCF or the filing of a coterminous neglect petition. The factual allegations are one or more of the following: I. consent by mother/father, in which case no further allegations are required; II. [a] reasonable efforts made to locate mother/father; [b] reasonable efforts made to reunify with mother/father; [c] reasonable efforts previously determined to be no longer appropriate; or [d] mother/father unable or unwilling to benefit from reunification efforts. The statutory grounds for termination are also set forth in the form (III). One or more applicable grounds are checked by the petitioner.
The summary of facts is referred to in Practice Book Sections 33a-1 and 34a-14, and in the petition. Section 33a-1(a) states that "[t]he petitioner shall set forth with reasonable particularity, including statutory references, the specific conditions which have resulted in the situation which is the subject of the petition." Section 33a-1(b) states that "[a] summary of the facts substantiating the allegations of the petition shall be attached thereto and shall be incorporated by reference." Section 34a-14 states that "[i]n addition to the entry of a pro forma plea of denial, a parent, legal guardian or child may, within thirty days of the plea date, file a written response to the Summary of Facts attached to the petition specifying that certain allegations in said summary of facts are irrelevant, immaterial, false or otherwise improper." The petition contains the following at IV: "The summary of facts, the particular facts upon which termination is sought is attached hereto and made a part hereof."
On August 24, 2004, the respondent mother filed a request to revise petitioner's Summary. The respondent did so ostensibly pursuant to Connecticut Practice Book Section 10-35. In the request to revise, the respondent asserted that ". . . the sections of the Practice Book pertaining to juvenile proceedings do not specifically address the [r]equest to [r]evise in [t]ermination [p]roceedings . . ." (see, however, Practice Book Section 34a-14 set forth in footnote 2 above). The respondent continued: "However, it is [r]espondent's understanding that said section[s] of the Practice Book [governing proceedings in juvenile court are] not considered to be exclusive as to the other sections of the Practice Book. Further, the concept of the [r]equest to [r]evise in juvenile proceedings is not wholly foreign." The respondent also stated that "[i]t is [r]espondent's understanding that it is within the [c]ourt's discretion to grant [r]espondent's [r]equest to [r]evise." In support of this proposition, the respondent cited a decision ( Nicole J.) where on September 13, 2000, a request to advise was granted in part by ordering the excision of a portion of the allegations in the summary of adjudicative facts. In its summary of the prior history of the Nicole J. case the court stated that "[o]n September 13, 2000, the court, Trombley, J., granted in part a request to revise of the respondent mother by ordering excision from the `Summary of Adjudicatory Facts for Termination of Parental Rights.'" In re Nicole J., Superior Court, child protection session at Middletown, 2002 WL 1610216 (Frazzini, J., June 25, 2002).
On September 13, 2004, DCF orally objected to the respondent's request to revise filed in this case. DCF cited Practice Book Section 34a-6, which sets forth allowed pleadings in juvenile matters and the order in which they must be filed. A request to revise is not set forth in the list of permitted neglect, uncared for, dependent children or termination of parental rights pleadings, which are (1) the petition, (2) each respondent's or child's motion to dismiss, and (3) each respondent's or child's motion to strike.
On September 17, 2004, the respondent mother filed a memorandum of law in support of her assertion that she is entitled to file a request to revise in the pending TPR case. She argued that:
1. This court has "the authority" to consider respondent's request pursuant to Practice Book Section 1-8;
2. the "general purpose" of a request to revise is a sufficient basis on which to permit it to be filed in a TPR case;
3. "juvenile courts have addressed similar requests in the past"; and
4. "fairness and equity in a case of [c]onstitutional magnitude require that [p]etitioner's facts be as accurate as possible."
The respondent mother cited Practice Book Sections 1-1 and 1-8 in support of her position that there is Practice Book authority permitting her to file her request to revise. Section 1-1, entitled "Scope of Rules," provides in relevant part that "(a) [t]he rules for the superior court govern the practice and procedure in the superior court . . . In all proceedings on juvenile matters . . . (b) [e]xcept as otherwise provided, the sections in chapters 1 through 7 shall apply to . . . juvenile matters in the superior court." Section 1-1 was most recently amended on June 26, 2000, to take effect Jan. 1, 2001.
Section 1-8 provides that "[t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." The respondent claimed that this section "specifically allows a [c]ourt to blur the rules in the interest of justice . . ." The respondent mother cited Practice Book Section 10-35 as setting forth the general purposes of a request to revise. The respondent claimed that "[t]he purpose of a [r]equest to [r]evise is to ensure that the facts contained in a complaint are as accurate and as relevant as possible, prior to a [c]ourt deciding whether an opposing party presents a legally sufficient cause of action, whether said decision is made via a [m]otion to [s]trike or at trial." The respondent mother noted that in deciding a motion to strike, a court must "assume as true and accurate" the facts alleged in the petitioner DCF's Summary.
The respondent mother cited only Nicole J., id., in support of her claim that juvenile courts "have addressed similar requests in other proceedings." Without citation, the respondent claimed that "[a] [r]equest to [r]evise was addressed by another juvenile court and probably others."
In support of her claim that fairness and equity are required "in a case of constitutional magnitude," the respondent cited In re Lindsay P., Superior Court, child protection session at Middletown (Lopez, J., March 10, 2004). That case involved an affidavit submitted by a DCF social worker to the court in support of a motion for an order of temporary custody ("OTC application"). The affidavit did not contain a doctor's statement that "the incident appeared accidental." The affidavit attributed to that doctor a conclusion that "[t]he injury is consistent with Father Throwing said child into a wall." There were additional factual omissions and inaccuracies. From Lindsay P., a case involving the completeness and accuracy of a DCF affidavit submitted ex parte in support of an OTC application, the respondent has argued that DCF has a duty in pleading its allegations and supporting facts in this TPR case to "provid[e] all facts [that are] relevant, whether favorable or unfavorable, to the [p]etitioner's position . . ." and that DCF must set forth all such facts in its Summary. The respondent has also argued (without citing any basis therefore) that DCF has or should have a continuing duty from the filing of its petition through the beginning of trial to update the allegations in its petition and Summary, so that the trial encompasses the circumstances existing at the time of trial, rather than the circumstances existing at the time of the petition and through the last amendment thereto. In making this argument the respondent has ignored the specific language of Practice Book Section 35a-7(a): "In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendments, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights."
The respondent filed a 24-page request to revise and a 12-page memorandum of law. There were two oral arguments. The respondent neither cited to the court nor directed the court's attention to Practice Book Sections 34a-1 or 34a-14, which sections require denial of the respondent's attempt to file a request to revise pursuant to Sections 10-35 et seq. Practice Book Sections 34a-1 and 34a-14 were adopted on June 24, 2002, and became effective on January 1, 2003. Each was thus adopted after the Nicole J. decision cited by the respondent.
Rule 3.3, Rules of Professional Conduct entitled "Candor toward the Tribunal," provides in relevant part that "(a) [a] lawyer shall not knowingly: (1) [m]ake a false statement . . . of law to a tribunal . . . [or] . . . (3) [f]ail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel . . ." The commentary to Rule 3.3 states that "[a] lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in subsection (a)(3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party."
Section 34a-1 provides in relevant part that "(a) Except as otherwise provided, the sections in chapters 1 through 7 shall apply to juvenile matters in the superior court as defined by General Statutes Section 46b-121. (b) The provisions of Sections 8-2, 9-5, 9-22, 10-12(a), 10-13, 10-14, 10-17, 10-18, 10-29, 10-62, 11-4, 11-5, 11-6, 11-7, 11-8, 11-10, 11-11, 11-12, 11-13, 12-1, 12-2, and 12-3 of the rules of practice shall apply to juvenile matters as defined by General Statutes [section] 46b-121." Section 46b-121 provides in relevant part that ". . . (A) Juvenile matters in the civil session include all proceedings concerning . . . termination of parental rights . . ."
Practice Book Section 34a-14 is entitled "Response to Summary of Facts." It provides that "[i]n addition to the entry of a pro forma plea of denial, a parent . . . may, within thirty days of the plea date, file a written response to the Summary of Facts attached to the petition specifying that certain allegations in said summary of facts are irrelevant, immaterial, false or otherwise improper." Practice Book Section 10-35(2) refers to "the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading . . ." Practice Book Section 34a-6 does not provide for the filing of an answer or special defenses by the parent (compare Practice Book Sections 10-46, through 10-53 concerning answers and special defenses in civil cases). Practice Book Section 34a-14 applies in TPR matters. Practice Book Section 10-35, et seq., pertaining to requests to revise in civil cases, and Practice Book 10-46, et seq., pertaining to answers and special defenses in civil cases, do not apply in TPR cases. Practice Book Sections 34a-6 and 34a-14 are crafted to reflect priorities important in TPR cases. Practice Book Sections 10-35, et seq., and 10-46, et. seq., do not contain terminology used in juvenile court matters, see, e.g., 26-1, "Definitions Applicable to Proceedings on Juvenile Matters."
Immediately following Practice Book Section 34a-14 are Sections 34a-15 through 34a-19, the rules relating to motions to strike in juvenile matters. Sections 34a-15, et seq., are crafted with respect to juvenile proceedings. For example, Section 34a-15 states that the petition (see footnote 1) is the subject of the motion to strike in TPR cases: "(a) Whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any petition, or one or more counts thereof to state a claim upon which relief can be granted; or the legal sufficiency of any prayer for relief in any such petition . . ." Practice Book Sections 10-39 through 10-46, which follow the civil request to revise Practice Book sections, pertain to motions to strike in civil cases, and do not contain any reference to petitions in juvenile court.
The respondent entered her plea on September 13, 2004. Pursuant to Section 34a-14, the respondent could file a written response to the Summary "specifying that certain allegations in said summary of facts are irrelevant, immaterial, false or otherwise improper . . ." if she does so "within thirty days of the plea date . . ."
The judges of the superior court have carefully and thoughtfully identified those provisions of the Practice Book that are applicable to termination of parental rights petitions. Many of the rules applicable to TPR cases, including those rules set forth in Section 34a, were adopted on June 24, 2002, and became effective on January 1, 2003. When those rules were adopted, the judges of the superior court were very familiar with fourteenth amendment procedural due process requirements applicable to TPR cases. "The United States Supreme Court has recognized that `freedom of personal choice in matters of family life is a fundamental liberty interest protected by the fourteenth amendment.'" In re Shaquanna M., 61 Conn. App. 592, 598, 767 A.2d 155 (2001). "The United States Supreme Court established a three prong balancing test in Mathews [v. Eldridge] to determine what safeguards the federal constitution requires to satisfy procedural due process. Courts apply that balancing test when the state seeks to terminate parental rights." Id., 61 Conn. App. at 606. One of the three prongs is "the risk of an erroneous deprivation of such [parental] interest given the existing procedures, and the value of any additional or alternate procedural safeguards." Id. The "risk of an erroneous deprivation" is not materially increased if the respondent is required to comply with Section 34a-14 instead of pursuing its request to revise the Summary in the stated interests of alleged accuracy and completeness. For example, if factual disputes exist at trial, DCF must prove its allegations by the clear and convincing evidence standard, the respondent may cross-examine the DCF witnesses, and the respondent may subpoena witnesses and records to be included in its defense.
There is thus no basis nor need for the court to "blur the rules" to permit the respondent to file a request to revise the petitioner's Summary. In this case it is not "manifest that a strict adherence to [the Practice Book rules] will work surprise or injustice." The respondent has not alleged that there is anything unusual, different or unique with respect to the petition and Summary in this case. Because neither Section 34a-1 nor 34a-6 of the Practice Book (nor any other sections of the Practice Book reviewed by the court) include Section 10-35, 10-36 or 10-37 in the list of sections that "apply to juvenile matters" or are in "[t]he order of pleadings" for TPR cases, the respondent is precluded from filing and should not have filed her request to revise pursuant to Practice Book Section 10-35 et seq. Such filing is thus a nullity and this TPR case shall proceed as if it had not been filed.
Rule 3.1 of the Rules of Professional Conduct (which Rules are set forth at the beginning of the Official 2004 Connecticut Practice Book) provides in relevant part that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis to do so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law . . ." The commentary to Rule 3.1 notes that "[t]he advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but [the advocate] also has a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed . . . The action is frivolous . . . if the lawyer is unable either to make a good faith argument on the merits of the action or to support the action taken by a good faith argument for an extension, modification or reversal of existing law."
Stuart David Bear, J.