Opinion
No. CP10-013611-A
April 7, 2011
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This case is an appeal from the November 18, 2010 decision of the Court of Probate, District of Hartford (Killian, J.), terminating the parental rights upon the consent of Michael L. Sr., ("petitioner") the father of a fifteen-year-old minor child, Alexis A. The appellant is the Department of Social Services of the State of Connecticut ("DSS"), which, pursuant to General Statutes § 45a-716(b)(5), is a party to the termination of parental rights action because the child has been and continues to be a recipient of state and federal benefits and receives child support enforcement services as defined in subdivision (2) of subsection (b) of General Statutes § 46b-231.
The basis for the appeal is the objection by DSS to the probate court's termination of the petitioner's parental rights, as that decision restricts DSS' continued ability to enforce child support orders issued for the benefit of Alexis in the Family Support Magistrate division of the Hartford Superior Court. The petitioner has moved to dismiss the appeal, claiming insufficiency of process due to DSS' untimely filing of its appeal, which petitioner claims was beyond the time allowed pursuant to subsection (a) of General Statutes § 45a-187.
Docket No. HHD-FA96-0619969S.
Findings of Fact
DSS brought the instant appeal from the decision of the probate court, district of Hartford, dated November 18, 2010, granting the petitioner's request to terminate his parental rights in Alexis A. based on his consent. The petition for termination of parental rights was filed subsequent to proceedings initiated by the Support Enforcement Unit of DSS in the Family Support Magistrate Division in the judicial district of Hartford, at Hartford, where the petitioner appeared pursuant to a capias issued for his arrest in a contempt proceeding. The family support magistrate issued orders enforcing the petitioner's current support and payment on arrearages owed to the custodial parent and the State of Connecticut. On or about June 25, 2010, the petitioner filed a motion to modify downward his current child support order. On or about July 13, 2010, he also filed a petition to terminate his parental rights in Alex with the Hartford probate court. On July 16, 2010, the petitioner's motion to modify his child support order was denied.
The mother of Alexis A. did not appear to defend the application for termination of the father's parental rights in the Probate Court. She was served notice of the appeal to the Juvenile Court and has failed to appear.
On October 26, 2010, prior to the hearing on the petition for termination of parental rights in the probate court, DSS filed a written objection to the application. After considering the objection of DSS, the probate court granted the petition and terminated the petitioner's parental rights on November 18, 2010.
At the hearing on this motion to dismiss, the petitioner and DSS stipulated to the following facts: (1) DSS received notice by mail of the decision of the probate court on November 23, 2010; and (2) the notice from the probate court was mailed to DSS no later than November 22, 2010.
The court requested that counsel ascertain and stipulate to the probable date the probate court mailed notice to DSS because appellate time limitations in probate begin to run on the date the decree is entered, subject to the implied requirement that the court give notice of its decree before the appeal period becomes operative. Notice may be given by the court orally at the time of hearing or subsequently in some other manner. The appeal period applies to those persons of the age of majority who are present or who have legal notice to be present. See Kron v. Thelen, 178 Conn. 189, 197 423 A.2d 857 (1979); Manthorne v. Borner, Docket No. CV 08-4008179, Superior Court, judicial district of Windham at Putnam (September 22, 2009, Riley, J.); Connecticut Probate Practice Book, 4th Ed., Ch. 5, Appeals from Probate.
On December 15, 2010, 23 calendar days after notice of the probate court decision was mailed, DSS filed this appeal. On February 22, 2011, the petitioner filed a motion to dismiss, claiming that the appeal should have been filed within twenty days in accordance with subsection (a) of General Statutes § 45a-187. On March 22, 2011, DSS filed an objection to the motion to dismiss. DSS claims that it had thirty days, not twenty days, within which to file this appeal under the statute. DSS and the petitioner submitted briefs. The child's attorney filed a statement in support of the motion to dismiss. The court heard oral argument on the motion to dismiss on March 29, 2011.
For the following reasons, the motion to dismiss is granted.
DISCUSSION
The ground asserted in the petitioner's motion to dismiss is insufficiency of service of process, pursuant to Practice Book §§ 10-31(a)(4) and 34a-10(a)(4). Although the petitioner did not claim lack of subject matter jurisdiction, the factual predicate for his claim is based on the late filed appeal, which is more properly a claim of lack of subject matter jurisdiction. See Practice Book §§ 10-31(a)(1) and 34a-10(a)(1); Porto v. Sullivan, 119 Conn.App. 360, 365, 987 A.2d 1092 (2010).
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). "It is hornbook law that the parties cannot confer subject matter jurisdiction on a court by consent, waiver, silence or agreement." Paradigm Contract Mngmnt. Co. v. St. Paul Fire Marine Ins. Co., 293 Conn. 569, 577, 979 A.2d 1041 (2009). "Moreover concerns regarding subject matter jurisdiction implicate the court's fundamental authority and may properly be raised and decided by the court sua sponte." Ajadi v. Commissioner of Correction, 280 Conn. 514, 533 (2006). "In whatever manner such an issue comes to the attention of a court, it must be addressed, even if the court must act sua sponte in order to do so." Pinder v. Pinder, 42 Conn.App. 254, 258, 679 A.2d 973 (1996); Practice Book § 10-33.
Since the court has raised the issue of subject matter jurisdiction and finds that claim dispositive, it declines to address the petitioner's claim of insufficiency of process, which is based on the same factual scenario.
"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). DSS, as the plaintiff-appellant in this case, 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." (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 court has considered the facts alleged in the "Complaint — Probate Appeal" filed by DSS, the decision of the probate court, which is part of the record, and the facts to which DSS and the petitioner stipulated on March 29, 2011.
Failure of a party to commence an appeal to the Superior Court from a decision of the probate court within the requisite time limits following an order, denial or decree of the probate court] deprives the Superior Court of subject matter jurisdiction. See Porto v. Sullivan, supra, 119 Conn.App.365; Corneroli v. D'Amico, 116 Conn.App. 59, 67, 975 A.2d 107 (2009).
"It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation . . . Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute . . . They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power . . . The Superior Court, in turn, in passing on an appeal, acts as a court of probate with the same powers and subject to the same limitations . . . The right to appeal from a decree of the Probate Court is purely statutory . . . and the requirements fixed by statute for taking and prosecuting the appeal must be met." (Citations omitted; internal quotation marks omitted.) Porto v. Sullivan, supra, 119 Conn.App. 365-66.
Accordingly, "[T]he Superior Court cannot cure the legal insufficiency of [an] appeal or overcome defects in it nor can it, by giving effect to the pleadings filed with it, alter the conclusiveness of the records of the Court of Probate as to the late filing of the appeal . . . Consequently, the Superior Court [can]not by the exercise of equitable principles or otherwise, relieve [the plaintiff] from the effect of [a] late filing of [an] appeal." (Citations omitted; internal quotation marks omitted.) Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 566, 192 A.2d 44 (1963).
The dispute here is whether or not the phrase "termination by consent" means termination by agreement of all the parties, or termination based on the consensual ground. General Statutes § 45a-187(a) requires that an appeal from probate must be taken within thirty days except in limited circumstances." Metcalfe v. Sandford, 271 Conn. 531, 537, 858 A.2d 757 (2004). Prior to October 1, 2007, General Statutes § 45a-186 provided that appeals from probate were commenced by motion to the probate court, which was then required to issue an order regarding the notice to be provided to interested parties. Thereafter, an appeal could be filed in the Superior Court but General Statutes § 45a-187(a) still required, in pertinent part, that "an appeal under section 45a-186 by persons of the age of majority who are present or who have legal notice to be present . . . shall be taken within thirty days except as otherwise provided in this section . . . appeals by such persons from an order of termination or parental rights, other than an order of termination based on consent, or a decree of adoption . . . shall be taken within ninety days. An appeal from an order of termination of parental rights based on consent, which order is issued on or after October 1, 2004, shall be taken within twenty days." (Emphasis added.)
DSS makes no argument as to lack of notice of the probate hearing on the petition for termination of parental rights, and admits it did participate in the hearing without a representative present by filing a written objection. (See Complaint-Probate Appeal, ¶ 11.) It argues that this was not a "termination of parental rights based on consent," because the judgment of termination of parental rights was not entered pursuant to an agreement of all of the parties. Instead, DSS claims, the petitioner was the only party who consented "to the self-serving [a]pplication for the termination of his own parental rights, and that two other parties — DSS and the mother — did not consent to the judgment." Therefore, DSS maintains, the thirty-day appeal time limit applies.
The decision of the probate court indicates the previous attorney for the minor child did not oppose the termination of the father's parental rights during the probate proceeding.
Termination of parental rights proceeds in two stages: adjudication and disposition. In the adjudicatory phase, the court must determine whether the proof provides clear and convincing evidence that at least one ground pleaded exists to terminate parental rights as of the date of the filing of the petition or last amendment. See In re Keyashia C., 120 Conn.App. 452, 455, 991 A.2d 1113, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010); In re Javon R., 85 Conn.App. 765, 769, 858 A.2d 887 (2004); In re Joshua Z., 26 Conn.App. 58, 63, 597 A.2d 842, cert. denied 221 Conn. 901, 599 A.2d 1028 (1991).
If at least one pleaded ground to terminate is found, the court must then consider whether the facts, as of the last day of trial, establish, by clear and convincing evidence, that termination is in the child's best interest. See In re Anthony H., 104 Conn.App. 744, 756, 936 A.2d 638 (2007). "In the dispositional phase . . . the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child." In re Joseph L., 105 Conn.App. 515, 529, 939 A.2d 16 (2008).
The petitioner and the child's attorney argue that "termination of parental rights based on consent" refers to a termination granted on the consensual ground, where the consent by the parent is reviewed and accepted by the court if it is found to be voluntarily and knowingly made. The court's acceptance of a parent's consent to the termination of his parental rights requires no agreement by any other party. Thereafter, the court must hold a hearing to determine whether termination is in the best interests of the child. This hearing may or may not be contested, and if, at the conclusion of the hearing, the court finds termination is in the child's best interest and grants the petition, it has granted a termination of parental rights based on consent.
Therefore, this appeal turns on the meaning of the "termination of parental rights based on consent" exception contained in General Statutes § 45a-187(a), a question of statutory interpretation. "When construing a statute [the] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . McCoy v. Commissioner of Public Safety, 300 Conn. 144, 150 (2011). Courts also are "guided by the principle that the legislature is always presumed to have created a harmonious and consistent body . . . [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted.) Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 197-98, 3 A.3d 56 (2010). Interpreting the statutory definition at issue in the present case is assisted by the consideration of several distinct, but related, statutory provisions.
The phrase "termination of parental rights based on consent" appears in other statutes governing the statutory scheme for the termination of parental rights. In the context of where it appears elsewhere, it clearly means termination based on the consent of a parent, which is a ground for termination, not a final judgment of termination agreed to by all the parties.
For example, in General Statutes § 45a-716(a), the probate court, upon receipt of a petition for termination of parental rights is required to set a time and place for hearing the petition. The time for hearing "shall be not more thirty days after the filing of the petition, except, in the case of a petition for termination of parental rights based on consent . . . the time for hearing shall be not more than twenty days after the filing of such petition." (Emphasis added.) Clearly, the term refers to the nature of the ground alleged in the petition, the consensual ground, and not to an agreement of all the parties, as the subsequent subsection lists a number of interested persons who must be provided notice and an opportunity to be heard. General Statutes § 45a-716(b). See also General Statutes § 45a-717(h) ("Except in cases where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings . . .") and General Statutes § 45a-717(g) (requiring the court to find at least one nonconsensual ground for termination and that termination is in the child's best interests).
In General Statutes § 45a-717, subdivision (f), the court "may approve a petition for "termination of parental rights based on consent filed" only if it finds, upon clear and convincing evidence that "termination is in the best interest of the child" and "such parent has voluntarily and knowingly consented to termination of the parent's parental rights." The statute does not require the court to ascertain whether anyone other than the parent consents to the termination. This same section then contemplates that despite a consent by a parent, the court may conclude that termination is not in the child's best interest. "If the court denies a petition for termination of parental rights based on consent, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving and the plan of the parent for the child." (Emphasis added.)
Procedurally, if a petition indicates that a parent consents to the termination of parental rights, or if at any time following the filing of a petition and before the entry of a decree a parent consents to the termination of his parent rights, the consenting parent shall acknowledge such consent on a form promulgated by the Office of the Chief Court Administrator evidencing to the satisfaction of the court that the parent has voluntarily and knowingly consented to the termination of his parental rights. General Statutes § 45a-715(d). When a court is advised that a parent wishes to consent to his or her parental rights, the court is obligated to thoroughly canvass the parent to insure that the consent is knowingly and voluntarily made without coercion or duress. The court is not obligated to canvass any other party in order to accept a parent's consent to termination of parental rights.
If any other party has an objection to the termination of the consenting parent's rights, it has ample opportunity, as DSS did here, to participate in the dispositional phase of the proceeding and argue that despite the parent's consent, the termination of parental rights is not in the child's best interest. If the court finds that termination, despite the parent's consent, is not in the child's best interest, it can deny the consenting parent's petition.
To interpret the phrase as DSS proposes defies logic, because if the phrase meant that all parties had to agree to a judgment of termination after the acceptance of a parent's consent, the requirement of an appeal time limit would be unnecessary, as there would never be an appeal if all parties agreed to the termination.
Accordingly, the phrase "termination of parental rights based on consent," refers to any judgment terminating parental rights on the ground of the consent of the parent, as opposed to another nonconsensual ground, and not to a judgment of termination entered by agreement of all parties. Therefore, pursuant to § 45a-187(a), DSS was required to file its appeal from the probate court within twenty days from the date notice of the court's decision was mailed, which it failed to do.
CONCLUSION
For the foregoing reasons, the court lacks subject matter jurisdiction and the appeal is dismissed.