Opinion
September 14, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
On June 29, 2005, the respondent mother filed a motion to dismiss the petition for termination of parental rights filed with the court on April 18, 2005. In her motion, the respondent mother claims that the petition was served on the mother well beyond the 10-day period set forth in the practice book and in the statutes. She claims therefore that the court lacks subject matter jurisdiction over this termination petition. For the reasons set forth in detail below, the court denies the motion.
DISCUSSION
Subsequent to the filing of the termination petition as detailed above, the mother appeared with counsel, was advised of her rights and entered a plea of denial. At that time she orally claimed that service was defective and was directed to file a motion which was not filed until June 29, 2005 with no memorandum of law attached as required by the Practice Book. As an initial proposition, the petitioner claims that respondent failed to file the motion within 15 days of the plea date, as required by Practice Book Section 34a-9. In addition, Practice Book Section 34a-10 provides that such motion "shall always be filed with a supporting memorandum of law . . ." And last, the court notes that Practice Book Section 34a-11 asserts that "any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed in the sequence provided . . ."
Turning now to the issue of subject matter jurisdiction, such jurisdiction has been defined as:
the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. In other words, subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has the competence to entertain the action before it . . . Once it is determined that the tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 334-35, 857 A.2d 349 (2004).
In addition, "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). By statute, both the Superior Court for Juvenile Matters and the probate courts of this state have general subject matter jurisdiction to hear matters involving the termination of parental rights. There can be no question that this court has the authority and competence to hear such cases and as a result, it has general subject matter jurisdiction over this case.
The court now turns to the specifics of this motion to dismiss: does the statutory framework, supported by the Practice Book, create a notification timeframe that would deprive the court of jurisdiction if the time frame is not met? Is the required timeframe a mandatory requirement or is it directory in nature? Connecticut General Statutes § 17a-112 provides the general statutory authority for the court to hear such cases and incorporates the timeframes for service set forth in the probate court statute concerning termination petitions. Pursuant to Connecticut General Statutes § 45a-716(c), notice of the hearing and a copy of the petition "shall be served at least ten days before the date of the hearing . . ." The practice book also sets forth the same timeframe in which to provide notice, Practice Book Section 33a-2(b).
Sec. 17a-112. (Formerly Sec. 17-43a). Termination of parental rights of child committed to commissioner. Cooperative post adoption agreements. Placement of child from another state. Interstate Compact on the Placement of Children.
(a) In respect to any child in the custody of the Commissioner of Children and Families in accordance with section 46b-129, . . . the commissioner . . . may petition the court for the termination of parental rights with reference to such child. The petition shall be in the form and contain the information set forth in subsection (b) of section 45a-715, and be subject to the provisions of subsection (c) of said section. (Emphasis added.)
Both the statute and the practice book utilize the word "shall" rather than "may" when addressing the ten-day service requirement. "The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 19, 848 A.2d 418 (2004). "If, however, the . . . provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory . . ." (Internal quotation marks omitted.) Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 626 n. 9, 642 A.2d 1186 (1994).
In a similar situation in a juvenile matters case, the court was concerned with the statutory requirement that a termination petition be filed within 90 days prior to the expiration of a child's commitment to the Department of Children and Families. The court held: "[W]e conclude that the use of the word `shall' within the statutory framework is directory, and that the court did not lack jurisdiction, even if it is assumed that the hearing on August 18, 2003, was not a continuation of the July 24, 2003 hearing and, therefore, not held within the time limits imposed by the statute." In re Adrien C., 9 Conn.App. 506, 509-11, 519 A.2d 1241, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987). See also the analysis of administrative structures and the rights attached thereto in Teresa T. v. Ragaglia, 272 Conn. 734, 865 A.2d 429 (2005) and In re Nashia C., 87 Conn.App. 210, 220, 866 A.2d 669, cert denied 273 Conn. 926, 871 A.2d 1031 (2005).
Additional support for this conclusion is found in the fact that the timeframes for service are stated in affirmative, rather than negative terms. Cases in other contexts have held that where "shall" is used in the affirmative unaccompanied by negative words, such statements are directory in nature. For example Winslow v. Zoning Board, 143 Conn. 381, 387-88, 122 A.2d 789 (1956) (statutory provision to hold public hearing within 60 days held to be directory).
For cases concluding negative language resulted in a mandatory provision. Stewart v. Tunxis Service Center, 37 Conn. 71, 77, 676 A.2d 819 (1996); accord Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995) 269 Conn. 10, 19, 848 A.2d 418 (2004).
After careful review, the court holds that the timeframes for service of a termination petition pursuant to Connecticut General Statutes § 17a-111(c) are directory, not mandatory. The court concludes such timeframes relate to matters of convenience and orderliness and are not the essence of the thing to be accomplished. While clearly the better practice is for all to honor the time restrictions set forth for service, an inadvertent failure to do so does not deprive the court of subject matter jurisdiction to proceed. The motion to dismiss is denied on these grounds.
While respondent mother has styled the issue as one of subject matter jurisdiction, the issue can be viewed differently.
Although related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and [to] determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. (Internal quotation marks omitted.) Fusco v. Fusco, 266 Conn. 649, 652, 835 A.2d 6 (2003).
A failure to act in a manner directed by a statute implicates personal jurisdiction over the respondent mother, rather than the court's subject matter jurisdiction. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 19, 848 A.2d 418 (2004). As noted, Practice Book Section 34a-11 asserts that "any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed in the sequence provided . . ." That sequence requires that such a motion must be filed within 15 days of the plea date, a timeline that was also not met in the instant case. This court concludes that the respondent mother, by delaying her own motion to dismiss, even if not artfully phrased, waived any claim of lack of jurisdiction over her person by failing to file her motion in a timely fashion. For all of the foregoing reasons, the respondent mother's motion is denied.
BY THE COURT
BARBARA M. QUINN, Judge