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listing nine trial court decisions holding that judgment terminating parental rights allows legal authority over children to be vested in statutory parent or adoptive parents regarding decisions about children's future life and their contact with others
Summary of this case from In re Annessa J.Opinion
No. H12-CP11-013647-A
April 19, 2011
MEMORANDUM OF DECISION ON DEFENDANT DEPARTMENT OF CHILDREN AND FAMILIES' MOTION TO DISMISS
This case involves an application filed by the plaintiffs, Phyllis S. and Harvey S., seeking visitation with a child for whom the defendant Commissioner of the Department of Children and Families (the department) is statutory parent. On October 22, 2011, this court raised the issue of subject matter jurisdiction and requested that the parties address the issue. The department subsequently filed its motion to dismiss, arguing that the plaintiffs lack standing to seek visitation for several reasons: (1) as non-parties, they may not seek relief in a juvenile case; (2) they have no standing to seek visitation pursuant to General Statutes § 46b-56; and (3) the applicants have failed to plead specific facts establishing standing as required by Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002). The attorney for the minor child supports the department's motion to dismiss. The plaintiffs maintain that General Statutes § 46b-59 confers standing on them to seek visitation with Andrew, and as such they are statutorily aggrieved. All parties have submitted memoranda of law.
Practice Book § 34a-10 permits the use of a motion to dismiss to assert lack of jurisdiction over the subject matter.
The court ordered that counsel be assigned to represent the child for purposes of this visitation application in the interests of justice, pursuant to § 46b-136.
The applicants do not claim "classical aggrievement," or a constitutionally guaranteed interest that confers standing on them, and it would be difficult for them to make any such assertion, as even licensed foster parents who cared for children in their own homes for lengthy time periods have no such interest. "Foster families do not have the same rights as biological families or adoptive families. Rather, the expectations and entitlement of foster families can be limited by the state . . . Foster parents are entrusted with foster children on a temporary basis only . . . Foster parents do not enjoy a liberty interest in the integrity of their family unit." (Citations omitted; internal quotation marks omitted.) Hunte v. Blumenthal, 238 Conn. 146, 164, 680 A.2d 1231 (1996); Terese B. v. Commissioner of Children Families, 68 Conn.App. 223, 231, 789 A.2d 1114 (2002). In Nye v. Marcus, 198 Conn. 138, 502 A.2d 869 (1985), superseded by statute on other grounds as stated in Terese B. v. Commissioner of Children and Families, supra, 68 Conn.App. 223, 230 n. 10, our Supreme Court noted that the foster parents' "emotional relationship with the child, which was acquired through the temporary foster placement, is too tenuous a basis to afford standing to institute a habeas corpus proceedings against the child's statutory parent and legal guardian." Id., 144.
For the following reasons, the court grants the department's motion to dismiss. The plaintiffs lack standing to seek visitation with Andrew C., which deprives the court of subject matter jurisdiction.
Discussion I. Motion to Dismiss
"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." Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "[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.) 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.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).
II. Standing and Subject Matter Jurisdiction
"Standing focuses on whether a party is the proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties. It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Citations omitted; internal quotation marks omitted.) Weidenbacher v. Duclos, 234 Conn. 51, 61, 661 A.2d 988 (1995).
"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . ." Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003). "It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court . . . Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction . . ." (Citations omitted; internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99-100, 680 A.2d 1321 (1996) (error in granting motion to amend complaint prior to resolving question of subject matter jurisdiction).
"Standing is . . . a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that the complainant] has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy." (Internal quotation marks omitted.) Connecticut Associated Builders Contractors v. Hartford, 251 Conn. 169, 178, 740 A.2d 813 (1999).
"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, 911 A.2d 712 (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.
A thorough discussion of this issue is contained in D. Klau, "Desperately Seeking Susan: Ripeness, Intervention, and Aggrievement in Bysiewicz v. DiNardo," Connecticut Lawyer, Vol. 21, No. 5, (2011), 10-17.
"The question of standing does not involve an inquiry into the merits of the case. It merely requires the party to make allegations of a colorable claim of injury to an interest which is arguably protected or regulated by . . . statute or constitutional guarantee in question." (Citations omitted; internal quotation marks omitted.) State v. Pierson, 208 Conn. 683, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1131, 103 L.Ed.2d 193 (1989).
III. Factual Findings
On June 2, 2009, the court, (Dannehy, J.), pursuant to General Statutes § 17a-112, granted the petition of the department to terminate parental rights to the minor child, Andrew C., finding that his biological parents abandoned him and that termination was in his best interests. The court appointed the department as statutory parent.
For purposes of clarification, the court indicated to the parties its intention to take judicial notice of Judge Dannehy's decisions terminating the parental rights of Andrew's parents and denying the motion to intervene Phyllis S., which was filed by the attorney for the minor child in Andrew's child protection case, both of which are referenced in the plaintiffs' application. There was no objection by any party to the court's taking such judicial notice. A transcript of the latter decision on the motion to intervene is in the file. See In re Andrew C., Superior Court, judicial district of Hartford at Hartford, Docket No. CP09-012402-A (June 2, 2009 October 20, 2009, Dannehy, J.).
Pursuant to General Statutes § 45a-718, a statutory parent "shall be the guardian of the person of the child, shall be responsible for the welfare of the child and the protection of his interest and shall retain custody of the child until he attains the age of eighteen unless, before that time, he is legally adopted . . ." In addition to the responsibility of serving as the child's legal guardian, a statutory parent appointed under the provisions of § 17a-112 may, by written agreement, subject to the approval of the Probate Court, give in adoption to any adult person any minor child of whom he or she is the statutory parent. General Statutes § 45a-724(a)(1). An adoption matter is instituted by filing an application in a Court of Probate, together with the written agreement of adoption. General Statutes § 45a-727(a)(1). The approval of adoption placement and placement for adoption is the sole responsibility of the department, acting as statutory parent, pursuant to General Statutes § 45a-727(a)(3).
On October 15, 2009, the attorney for the minor child moved to grant intervening party status to the one of the plaintiffs here, Phyllis S., averring that the child had serious medical issues, the child was hospitalized at the Connecticut Children's Medical Center (CCMC) and that Phyllis S. had become acquainted with Andrew as a "volunteer cuddler." The department objected to the granting of such an intervention post-termination. On October 20, 2009, the court, (Dannehy, J.), denied that motion. In ruling on the motion, the court stated:
I have to agree with [the assistant attorney general.] Really, I mean, I understand, Ms. [S.], you're motivated purely out of Andrew's best interest, but really when you get into a legal analysis of an intervening party, it just doesn't fit the criteria here. You know, hopefully you'll remain a factor in his life, for the — you know, indeterminate future, but there really are certain grounds that are bases for intervening in a case. It's highly unusual, almost never seen, after there's been a termination.
The child has to be freed up for adoption and there have been some families that have come forward as potential adoption resources. You're not related to the child, I mean, you're not — The letter refers to you as the foster godmother, but you're not a foster parent to the child and it's not timely filed. You're not a relative and I just don't feel it's appropriate, so I'm going to deny the motion to intervene. T., 5-6.
No appeal was taken by the attorney for the child from the denial of the motion to intervene Phyllis S., and neither she nor Harvey S. ever sought to intervene.
Nearly a year later, on October 6, 2010, Phyllis and Harvey S. filed this application for visitation with the child, alleging in an addendum that in September 2009, the department was "of the opinion" that Phyllis S. served in the role of "foster grandparent" to the child and visited him on a daily basis, but at an unspecified point, the relationship between Andrew and Phyllis S. was "terminated unilaterally" and the department refused to consider the "willingness" of Phyllis and Harvey S. to adopt Andrew. Plaintiffs further allege that they are interested in adopting the child, notwithstanding the fact that another pre-adoptive home may have been identified, in which case they aver that "should the adoption of the minor child have been effectuated the applicant intends to amend the application naming the adopting parents as respondent."
These allegations regarding adoption perhaps signal a challenge to the department's decision concerning Andrew's adoptive placement. The fate of any prospective adoptive parent's interest is squarely in the hands of the department. Under Connecticut law, the department, as statutory parent, has the exclusive authority to consent to the adoption of a child. General Statutes § 45a-727(a)(3). See also In re Adoption of Greybull, 565 P.2d 773, 774-75 (Or.App. 1977) (consent of child welfare agency a jurisdictional fact that must be pleaded in adoption petition); Ellis v. Hamilton, 669 F.2d 510 (7th Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982) (whatever claim a prospective adoptive parent may have to a child, it does not rise to the level of a fundamental liberty interest).
IV. DISCUSSION
i. Claim That the Plaintiffs Lack Standing Under General Statutes § CT Page 9756 46b-56
The plaintiffs used a Judicial Branch Form, JD-FM-161 Rev. 12-09, to seek the right to visit Andrew. The form itself only refers to two statutes as authority for its existence, §§ 46b-56 and 46b-61. Section 46b-61 concerns orders under the circumstances where parents live separately. That section has no applicability here, as a parent must be the plaintiff. Section 46b-56 allows the Superior Court to make orders regarding visitation in "any controversy before the Superior Court as to the custody or care of minor children." That section, too, would be inapplicable here because there is no pending controversy before the court as to Andrew's custody. See Castagno v. Wholean, 239 Conn. 336, 346-47, 684 A.2d 1181 (1996), overruled on other grounds, Roth v. Weston, supra, 259 Conn. 202. The judgment terminating parental rights has entered and the department, an agency of the state, is now his statutory parent, legal guardian and indisputable lawful custodian. The form makes no printed reference to § 46b-59, the statute under which the court presumed the plaintiffs were proceeding — a presumption with which the plaintiffs agreed — at the initial hearing on their application on October 22, 2010. The form asks the user to identify his relationship to the child and contains a box to check, adjacent to which is express language which suggests to users of the form the jurisdictional standard to be afforded standing to seek visitation under Roth. The plaintiffs checked that box. There is no dispute that there is no specific family division form specifically or solely designed for applications brought under § 46b-59. To argue that the plaintiffs could not effectively adopt this form for their specified purpose because "§ 46b-59" is not printed in the left hand corner of the form exalts form over substance. A court "must look to the substance of the relief sought by the motion rather than its form because to hold [a litigant] strictly to the label on his filing would exalt form over substance." Wheeler v. Ives, 37 Conn.App. 7, 17, 654 A.2d 789, cert. denied 233 Conn. 905, 657 A.2d 645 (1995); In re Haley B., 262 Conn. 406, 413, 815 A.2d 113 (2003); In re Cameron C., 103 Conn.App. 746, 751, 930 A.2d 827 (2007), cert. denied 285 Conn. 906, 942 A.2d 414 (2008). Therefore, the court does not grant a dismissal on this ground.
Section 127a-112(o) prescribes the somewhat limited role of the juvenile court post-termination. The department, as statutory parent, must report to the court periodically on the progress made to implement the plan of adoption, and describe the reasonable efforts made to promote and expedite the adoptive placement and to finalize the child's adoption, including documenting recruitment efforts. The intent is to insure that everything possible is being done to achieve adoption as required by the federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620 et. seq. (1980); P.L. 96-272; and the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 620 et seq. (1997); P.L. 105-89.
ii. Claim That Visitation Application Does Not Contain Sufficient Factual Specificity For the Superior Court to Assert Subject Matter Jurisdiction
In Roth v. Weston, supra, 259 Conn. 202, the Connecticut Supreme Court, following the decision of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), articulated the standard a third party must plead and prove by clear and convincing evidence in order to seek visitation over the objection of a fit biological parent. Our Supreme Court held that § 46b-59, Connecticut's visitation statute, like the state of Washington visitation statute at issue in Troxel, "did not adequately acknowledge the status of parents' interest in the care, custody and control of their children, as perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court." Roth v. Weston, supra, 259 Conn. 216, quoting Troxel v. Granville, supra, 530 U.S. 65. The application for visitation in Roth, as in this case, was brought pursuant to § 46b-59 by a grandparent and an aunt seeking visits with two children residing with biological father after their mother's death. Roth requires any third party, including a grandparent or a great grandparent, seeking visitation to allege and establish by clear and convincing evidence: (1) "a parent-like relationship as a jurisdictional threshold," Id., 222; and (2) "an allegation, along with proof thereof, that the parent's decision regarding visitation will cause the child to suffer real and substantial emotional harm." Id., 226.
As the Supreme Court later explained in Fish v. Fish, 285 Conn. 24, 939 A.2d 1040 (2008), in discussing the holding in Roth, a third party's visitation petition under § 46b-59 must contain "specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship." The petition must also contain "specific, good faith allegations that a denial of the visitation will cause real and significant [emotional] harm to the child. As we have stated, that degree of harm requires more than a determination that visitation would be in the child's best interest. It must be a degree of harm analogous to the kind of harm contemplated by §§ 46b-120 and 46b-129, namely, that the child is `neglected, uncared-for or dependent' . . . Only if these specific, good faith allegations are made will a court have jurisdiction over the petition." Id., 38; Denardo v. Bergamo, 272 Conn. 500, 514, 863 A.2d 686 (2005) See also Warner v. Bicknell, 126 Conn.App. 588, 593, 12 A.3d 1042 (2011) (absent specific, good faith allegations identified by the Roth court, the court must dismiss a third party's application for visitation even when parent had previously permitted visitation).
Fish acknowledged that statutes governing third-party custody actions had failed to define with particularity those persons who may seek custody of a child and were thus overly broad. The Supreme Court held, "[I]n cases in which a third party seeks to intervene in a custody proceedings brought pursuant to § 46b-56(a), the party must prove by a fair preponderance of the evidence facts demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third party custody would be in the child's best interest." Fish v. Fish, supra, 285 Conn. 89.
The plaintiffs' argument that the holding in Roth is inapplicable is somewhat contradictory because they actually allege the predicate jurisdictional requirement. As noted above, the applicants checked the box on the form that summarizes those requirements. However, in their memorandum in opposition to the motion to dismiss, they argue that the jurisdictional requirements as set forth in Roth "do not apply based on the [d]epartment's legal status as statutory parent." "Only the status of a biological parent invokes the protection of the liberty interest at issue under the Fourteenth Amendment — a parent's interest in the care, custody and control of their children . . ." They cite Troxel v. Granville and three trial court decisions which hold that a legal guardian of a child is not entitled to the same due process protections provided to a biological parent under Roth.
Tyndall v. Banach, Superior Court, judicial district of Litchfield at Litchfield, Docket No. LLI FA 10 4009642 (July 13, 2010, Pickard, J.) [ 50 Conn. L. Rptr. 386]; Thibeau v. Faust, Superior Court, judicial district of Waterbury, Docket No. FA 08-4015565S (October 27, 2008, Cutsumpas, J.T.R.) [ 46 Conn. L. Rptr. 552]; In re Kenneth W., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV03-0404311 (April 11, 2005, Hadden, J.) [ 39 Conn. L. Rptr. 113]. Frankly, the court finds these holdings somewhat troubling. For example, should grandparents who have assumed the guardianship of their grandchildren, often without compensation from the state or support from the biological parents, have to defend against claims for visitation from any "third party" in a full evidentiary proceeding to ascertain "best interests?" If so, the class of plaintiffs who may seek visits from non-parental custodians presumably include anyone, even persons with no relationship with the child, such as the neighborhood pedophile, and such custodians would be forced to defend such actions.
The plaintiffs claim that the department, as statutory parent, has no superior status or role in the life of a child than a legally appointed guardian who is also a blood relative. The court does not agree with the comparability of the two roles, but concedes that the department does not possess the constitutionally protected, fundamental liberty interest of biological parents, as stated in Troxel and Roth, to the "desire for and right to the companionship, care, custody and management" of their children. (Citations omitted.) In re Jeisean M., 270 Conn. 382, 394-95, 852 A.2d 643 (2004).
However, even if the holding in Roth does not apply to a statutory parent, before Roth was decided, two other Connecticut cases addressed what constituted sufficient standing to seek visitation without addressing the constitutional liberty interests of biological parents. When visits are being sought for a child in the custody of someone other than a biological parent, the court does not agree that the inapplicability of Roth confers standing on any third party to seek visits with a child for whom the department is statutory parent. Even if Roth is inapplicable, that decision and cases preceding it, such as Weidenbacher v. Duclos, supra, 234 Conn. 51, 76, and Castagno v. Wholean, supra, 239 Conn. 336, 352-53, hold that specific, good faith allegations are required to survive subject matter jurisdiction scrutiny when petitioning for visitation.
In the first case, Weidenbacher v. Duclos, supra, 234 Conn. 51, the Supreme Court considered whether or not a man claiming to have fathered the child of a married woman had standing to pursue a habeas claim for custody or visitation of a child he believed to be his. Rather than adopt a bright line approach, the court noted, "[W]e are reluctant . . . to formulate our own definitive list of the elements that will establish legal standing in such a case. Every paternity action revolved around its own unique set of facts and personal relationships, and a trial court must have flexibility to weigh the multiplicity of competing interests that may hang in the balance." Id., 76. The child's attorney argues that standing in this case should be denied to the applicants in a manner that embraces the principle that the court weigh the multiplicity of competing interests that may be in the balance. Such an approach will avoid the overly broad allowance of such intrusions into the life of a child.
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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 . . ." Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 1006 (2010); Fennelly v. Norton, 103 Conn.App. 125, 139-40, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).
Even assuming the facts alleged in the application and the addendum to it are true, the application is fatally deficient in consideration of the competing interest the department has in obtaining a permanent home for Andrew.
The plaintiffs have not alleged that the department is an unfit statutory parent. They have stated that Phyllis S., (not Harvey S.), had been a visiting resource for the child and an important figure in his life. At some point, not specified in the application, they allege that the department terminated this visiting relationship, so it is impossible to ascertain the duration of this arrangement. The plaintiffs suggest they are interested in adoption, notwithstanding the fact that another adoptive home may have been identified or that an adoption may already have been achieved. They aver that "should the adoption of the minor child have been effectuated they intend to amend the application naming the adoptive parents as a respondent." Although the application can fairly be read to allege that Phyllis S. had, at some point in the past, a visiting relationship with the child in her capacity as a hospital volunteer and some inexplicable designation by the department of her as a "foster grandparent," a status not recognized by law or department policy, the application does not allege that she had a parent-like relationship. At the time of the plaintiffs' contact with the child, he was hospitalized. Presumably, the department and hospital staff provided for the child's day to day needs and medical care. There are no allegations that either of the plaintiffs have acted as a parent, been treated as a parent, or made decisions like a parent. While it appears, for some unknown period of time, Phyllis, not Harvey, may have been an involved hospital volunteer, neither of them had any authority for any decision-making with respect to the child and he never lived with them.
There are no specific allegations whatsoever as to Harvey S.'s relationship with Andrew or the nature or extent of his contacts with the child, if any. He is not alleged to have ever been designated by the department as a "foster grandparent." At some point in the past, the department severed the visiting relationship between Andrew and the plaintiffs, but they fail to allege specific, good faith allegations that the cessation of these visits caused or will cause "real and substantial emotional harm" to the child that rises to the level of abuse or neglect as defined by Connecticut law. See Fish v. Fish, supra, 285 Conn. 39.
These allegations would not satisfy the standing requirements of Roth if it applied to a statutory parent. Roth requires the applicants to plead "specific and good faith allegations." Fish v. Fish, supra, 285 Conn. 38. "The requirement of `specific good faith allegations' means more than barebones assertions of a parent-like relationship and that denial of visitation would cause real and significant harm to the child." Pomerleau v. Remillard, Superior Court, judicial district of Tolland at Rockville, Docket No. FA 09-4011751S (November 23, 2009, Frazzini, J.) [ 48 Conn. L. Rptr. 849], citing Fennelly v. Norton, supra, CT Page 9778 103 Conn.App. 125 (checked-off box on judicial department visitation form "does not suffice for the specific good faith allegations required by Roth"). They do not allege sufficient facts to support the existence of a parent-like relationship with Andrew. They assert no specific good faith allegations in support of the second prong of Roth: that a denial of visitation would cause real and significant harm to Andrew.
The child's attorney notes the paucity of factual allegations justifying the plaintiffs' intrusion into the department's statutorily mandated obligation to care for Andrew and find him a permanent home. He argues that the visitation application does not contain sufficient factual specificity showing that visitation is in Andrew's best interest.
In Castagno v. Wholean, supra, 239 Conn. 336, the plaintiff grandparents, pursuing visitation pursuant to § 46b-59, argued that the statute contained no threshold requirement whatsoever since none were expressed in the plain language of the statute. They argued, as the applicants do here, that the sole criterion is the best interest of the child and that any third party who seeks state intervention in the form of a court's grant of visitation rights may petition the court at any time unless the person from whom visitation is being sought is a biological parent. However, the Supreme Court noted that reading the statute literally, as the applicants would have the court do here, would allow any person, under any circumstances, to petition the court for visitation rights, no matter how remote his or her connection to the child. Our Supreme Court found that this was "an unreasonable conclusion" that "would ignore companion statutes that would be made superfluous by its application." Id., 340. After an extensive discussion of the legislative history of § 46b-59, the court concluded that the statute, although extraordinarily broad in its terms, is one of a series of statutes related to dissolution of marriage, legal separation and annulment. "When it was initially introduced in the legislature, the bill's first paragraph contained language referring to situations in which the family was no longer intact, either through death or de facto separation. That language was removed, however, in the process of amendment, prior to the bill's passage." Id., 347-48. Nevertheless, the Supreme Court concludes that the legislators had been focusing on providing a remedy for those grandparents who sought visitation under circumstances analogous to those already addressed by §§ 46b-56 and 46b-57 . . . where their families have been disrupted in a manner analogous to the circumstances indicated in §§ 46b-56 and 46b-57: divorce, legal separation, or annulment. The court further explained, "Although the death of a parent or the de facto separation of the parents may allow an action, there may be other times when an action is also warranted, such as when there has been a good faith allegation by a third party of abuse or neglect. A party seeking visitation rights must, however, in the pleadings, set forth with specificity the factual bases for the petition before the court can determine whether such threshold conditions have been met." Id., 352-53.
These two statutes establish the threshold requirement of a pending controversy that must be satisfied before a third party could intervene to achieve the care, custody or visitation of minor children.
The decision in Roth discusses the court's holding in Castagno as incorporating "a threshold jurisdictional requirement into § 46b-59 that would permit the trial court to entertain a petition for visitation only when the family life of the minor child had been disrupted either by state intervention analogous to the situations included within §§ 46b-56 and 46b-57 or "in a manner to that addressed by §§ 46b-56 and 46b-57, but in which courts have not yet become involved." Roth v. Weston, supra, 259 Conn. 216, quoting Castagno v. Wholean, supra, 239 Conn. 350.
There is currently no extant or impending controversy under either § 46b-56 or § 46b-57, or any situation analogous to those statutes involving parental responsibility for Andrew's custody, care or control. His parents' rights were terminated almost two years ago as he was abandoned shortly after his birth. His situation is not at all analogous to the type of interfamilial dispute contemplated by the legislature when it enacted § 46b-59 and permitted grandparent and other third-party intervention. Accordingly, under the holding in Castagno, which was not superseded entirely by Roth, § 46b-59 is inapplicable to a child for whom the department is statutory parent.
Even if the visitation statute is applicable to Andrew's situation, when viewing the record in a light most favorable to the plaintiffs, the nexus between the factual allegations and Andrew's best interests is too tenuous. At most, the petition suggests that visitation was in Andrew's best interest at some point in the past. No allegations suggest that Phyllis S. has even had contact with Andrew since October 2009. Harvey S.'s relationship with Andrew is basically indiscernible from the allegations. No details are provided regarding the existence of any relationship subsequent to the point when Andrew was approximately ten months old, well over a year ago.
The plaintiffs' addendum indicates that "Due to the confidentiality of the relationships relative to the minor child . . . some information may not be available and/or accurate." However, key pieces of information to which the applicants are privy have been deliberately omitted from their factual allegations. Of note, they neglect to inform the court as to when they last visited with Andrew. Also omitted is a factual explanation surrounding the reason why "[t]he relationship between Andrew and Phyllis S. was terminated unilaterally" by the department. Considering Andrew's age and the fact that the applicants have not visited with him in over one year, the record contains no more than a barebones assertion that court ordered visits are in Andrew's best interest. Pursuant to Weidenbacher and Castagno, standing in this case must be denied to the plaintiffs. This court has weighed the "multiplicity of competing interests that may be in the balance," and, with this ruling, seeks to "avoid the overly broad allowance of such intrusions into the life of a child." Weidenbacher v. Duclos, supra, 234 Conn. 76. The plaintiffs allege insufficient facts to warrant the extraordinary inclusion of unrelated persons into the life of a child in need of adoption.
iii. Claim That Section 46b-59 Does Not Apply To Children For Whom the Department is Statutory Parent
To judicially extend the provisions of § 46b-59 to permit any third party access to a child for whom the department is statutory parent would have the unintended and impermissible consequence of undermining the unified, complex statutory scheme of temporary custody, commitment, termination and adoption of children in need of the state's protection. This is a result our Supreme Court cautions against in Castagno v. Wholean, supra, 239 Conn. 340: reading the visitation statute literally would allow any person, under any circumstances, to petition the court for visitation rights, no matter how remote his or her connection to the child, and this is an "unreasonable conclusion" that "would ignore companion statutes that would be made superfluous by its application."
The juvenile courts have always been recognized as uniquely designated to address issues involving neglected and abandoned children. The exclusive jurisdiction of the Superior Court's juvenile matters division to determine issues affecting children who are or have been the subject of a neglect petition was first noted in the case of In re Juvenile Appeal (85-BC), 195 Conn. 344, 488 A.2d 790 (1985), where our Supreme Court determined that once a child is adjudicated neglected, the Superior Court for juvenile matters has exclusive jurisdiction over matters concerning the child's guardianship. The court determined that "[t]he language of § 46b-129, particularly that of subsection [j] reveals that the General Assembly contemplated a clear distinction between guardianships ordered by the Superior Court in accordance with that provision and those ordered by the Probate Court." Id., 366.
The case of In re Connor E., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FA04-CP-08-007835A (July 9, 2009, Wolven, J.) [ 48 Conn. L. Rptr. 334], rejected the applicability of §§ 46b-56 and 46b-57, which govern post-dissolution and third-party custody disputes, to proceedings in juvenile court. In that case, the department moved to modify a neglect disposition from protective supervision with the parent to guardianship with the maternal uncle. A father argued that the court must apply the new standards articulated in Fish v. Fish, supra, 285 Conn. 24, because the children's potential placement would be with a non-parent vs. a parent. The court, quoting In re Cameron C., supra, 103 Conn.App. 753-54, noted:
Although it is recognized that headings or titles of legislation are not conclusive, they may, nonetheless, be valuable aids to construction and legislative intent . . . The plain meaning of § 46b-56, read within the context of the related statutes within chapter 815j, makes clear that this provision is intended to apply only in dissolution of marriage, legal separation and annulment actions. Moreover, the Supreme Court in Fish did not extend its new third-party custody standards to neglect proceedings; rather, it repeatedly contrasts and compares the two statutory frameworks. (Citations omitted.)In re Cameron C., supra, 103 Conn.App. 746, rejected a grandmother's argument, similar to the one posited here by the applicants, that the custody provisions of § 46b-56(c) applied to any custody dispute, including a motion filed by a parent to reinstate guardianship of a child previously adjudicated neglected, despite the clearly more germane provisions of General Statutes § 46b-129(m), a juvenile statute which addresses motions for revocation of commitment. The plaintiffs here insist that the provisions of § 46b-59 apply to any third party who wishes to visit with a child in the care of the department, even one for whom the department is statutory parent. Such an interpretation creates an antagonism between several provisions regarding visitation in the child welfare statutes and § 46b-59.
In the absence of an intent clearly expressed, courts should not impute to the legislature intent to pass antagonistic legislation. Farms Country Club, Inc., v. Carini, 172 Conn. 439, 444, 374 A.2d 1094 (1977); In re Juvenile Appeal (85-BC), supra, 195 Conn. 366, fn.18. There is a presumption that the legislature, in enacting a law, does so in view of the existing relevant statutes and intends it to be read with them so as to make one consistent body of law. McCoy v. Commissioner of Public Safety, 300 Conn. 144, 160, 12 A.2d 948 (2011); Brown Brown v. Blumenthal, 297 Conn. 710, 725, 1 A.3d 21 (2010). If courts can by any fair interpretation find a reasonable field of operation for two statutes without destroying their evident meaning, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect. Shanley v. Jankura, 144 Conn. 694, 702, 137 A.2d 536 (1957). Legislative enactments should be interpreted in a manner that does not render them meaningless. Farmington v. Dowling, 22 Conn.App. 564, 566, 577 A.2d 1128 (1990).
"In seeking to determine the meaning of a statute, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes . . . Specifically, § 1-2 provides, `The meaning of a statute shall, in the first instance, be ascertained from 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.' The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Citations omitted; internal quotation marks omitted.) Raftopol v. Ramey, 299 Conn. 681, 12 A.3d 783 (2011).
Recently, in the case of In re Jan Carlos D., 297 Conn. 16, 997 A.2d 471 (2010), a respondent juvenile attempted to apply a criminal statute, General Statutes § 54-1f, to his argument that a summons commencing a delinquency proceedings constituted an unlawful warrantless arrest. Our Supreme Court held the criminal section did not apply. After reviewing the text of the statute, as required pursuant to General Statutes § 1-2z, the court found that the plain language of the statute offered no clear guidance regarding whether § 54-1f applied to juveniles, as it neither explicitly included nor excluded juveniles from its purview. As a result, the court turned its attention to other related statutes, noting that the legislature had provided specific protections for juveniles regarding speedy information in § 46b-133 as part of a larger legislative scheme governing the adjudication of criminal matters involving delinquent juveniles. "It is well established that the legislature has [created] a separate system for the disposition of cases involving juveniles accused of wrongdoing . . . and, accordingly, delinquency proceedings in juvenile court are fundamentally different from criminal proceedings." (Citations omitted; internal quotation marks omitted.) Id., 23. Therefore, the court found, when read in the context of the statutory scheme applicable to juveniles, § 54-1f was found to be inapplicable to juveniles. "Indeed, the legislature's establishment of an unambiguous statutory framework [providing that criminal and juvenile proceedings are governed by separate procedures] counsels against interpolating into our juvenile justice system a single statute from the laws governing adult criminal procedures. The legislature has expressed no such intention." (Citations omitted; internal quotation marks omitted.) Id., 24.
Even the text of § 46b-59 itself depicts a legislative intent to avoid conflict with the juvenile statutory scheme. The last two sentences of the statute state:
Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.
It is unclear as what the legislature was contemplating in including these two sentences. As a result, extratextual evidence of the meaning of the statute should be considered and the court should "look for interpretive guidance to the 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 . . ." Key Air, Inc. v. Commissioner of Revenue Services, 294 Conn. 225, 232, 983 A.2d 1 (2009).
The legislative history of § 46b-59 sheds light on the reasons for the existence of the final two sentences in that statute and other statutory provisions passed by the legislature, subsequent to the enactment of § 46b-59 and amendments to it, demonstrate a clear intention on the part of the legislature to develop an entirely different statutory scheme regarding who may be permitted visitation of a child when the department is the child's lawful custodian or statutory parent, as opposed to a child who is the subject of a dispute between family members.
When the legislature first enacted the precursor to § 46b-59 in 1978, it was intended to give only grandparents of minor children the right to seek visitation with their grandchildren in cases of the death of one parent or where the parents were living apart. Castagno v. Wholean, supra, 239 Conn. 347. Illegitimate children were also included as long as there was a determination of paternity. 21 H.R. Proc., Pt. 5, 1978 Sess., pp. 1990-95; 21 S. Proc., Part 2, 1978 Sess., pp. 762-72.
During a hearing before the Judiciary Committee on the raised bill, Judge Glen Knierim, on behalf of the Probate Courts, expressed concern that "visitation rights of [a] grandparent in case of death or separation . . . could possibly interrupt an adoption placement if visitation rights were given to grandparents and then, both parents were dead and the child was in the adoption process." A colloquy then follows between Judge Knierim and Senator De Piano as to whether or not grandparents would have any legal standing to be heard during the adoption process, and they both concluded that they would not. Judge Knierim then indicates that if the problem he pointed out could be addressed, he would have no objection to the bill. Conn. Joint Standing Committee Hearings, Judiciary, Pt. I, 1978 Sess., pp. 357-59.
This committee testimony explains the reason for the last two sentences of § 46b-59. Clearly, the legislature intended that no application under this section should be permitted to interfere with a child's adoption and expressly permitted the vacating of any orders in existence prior to termination of parental rights or adoption. It logically follows that no initial application seeking such orders is required to be considered regarding a child who has been freed for adoption. The alternative will lead to bizarre and unworkable results.
This portion of the statute was not changed when, in 1983, the legislature passed P.A. 83-95, deleting provisions regarding visitation rights of grandparents and permitting the court to grant rights of visitation to any person.
To allow any person to employ § 46b-59 to seek visits with children whose parents' rights have been terminated would permit that unfit parents whose rights have been terminated, prior foster parents and prior legal guardians of children freed for adoption the ability, at any time, to file applications for visitation under the statute. Such a result could significantly impede what the law requires be an expeditious progress toward achieving permanency for a child. In juvenile proceedings concerning the permanent placement of children, "time is of the essence." In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 439-42, 446 A.2d 808 (1982); In re Alexander V., 223 Conn. 557, 565, 613 A.2d 780 (1992). This overly broad application also would conflict with a number of longstanding precedents that have denied legitimate foster parents and biological relatives the right of intervention to seek custody or visitation.
The department is correct that the applicants would have no right to intervene in the termination of parental rights matter affecting Andrew, and notes Judge Dannehy's previous denial of the attorney for the minor child's motion seeking to permit Phyllis S. to intervene. The plaintiffs claim that this argument is irrelevant here. They maintain that they have filed a wholly independent action in the juvenile court. They have not filed a motion to intervene and are not claiming any right to intervene in the case that concluded with the termination of Andrew's parents' rights. (As a result, this court ordered their application filed under a new and separate docket number so as not to permit the plaintiffs access to the confidential file that contains the petitions, affidavits, social studies and case status report filed up to and at the time that Andrew's biological parents' rights were terminated, or to any information as to Andrew's status contained in post-termination filings required of the department pursuant to § 17a-112(o). In addition, the applicants have not been permitted to attend ongoing, post-termination in-court reviews regarding Andrew, which must continue until he is finally adopted.)
The applicants are correct in stating that they could have elected to file this action in the family court, but thought it best to file in the juvenile court to protect Andrew's right to confidentiality. In the interest of protecting Andrew's confidentiality as much as possible, and in light of the implications this case portends for juvenile law, the court chose not to transfer the matter back to the family division for consideration.
The longstanding history of cases denying intervention to foster parents and other relatives in child protection cases is not irrelevant, because this history denotes a great reluctance on the part of courts to allow third-party intrusions into such matters, often stressing the need for finality. "The reasons are obvious: the longer the child remains in limbo, the longer it takes for him or her to shake the dislocation and trauma associated with an uncertain family situation . . . [T]o survive a motion to dismiss and proceed to a trial that would throw the child and [the] adoptive parents right back into the very type of unsettling, traumatic atmosphere that should have come to closure long ago." (Citation omitted.) Elgin Carol W. v. Dept. of Health Family Services, 221 Wis.2d 36, 47, 584 N.W.2d 195 (1998) (where maternal grandparents filed petitions for custody, guardianship and visitation following termination of parental rights of child's biological parents). The granting of a motion to intervene in a juvenile matter acknowledges a legitimate, continuing and significant participatory interest in the juvenile proceeding. Intervention, which confers party status, is necessary to obtain automatic access to the records in the court file, which often contains sensitive information as to the parents' and the child's medical and psychological histories, as well as the right to attend court proceedings affecting the child's interests and to be privy to the disclosure of additional facts surrounding the child's past, current and future circumstances. Inviting § 46b-59 applications, absent the intervention of persons desiring visitation being permitted by the court, may lead to the disclosure of confidential information relating to the child and the biological parents to an unrelated non-party.
Subsection (a) of General Statutes § 46b-122 states, in pertinent part: ". . . any judge hearing a juvenile matter may, during such hearing, exclude from the room in which such hearing is held any person whose presence is, in the court's opinion, not necessary . . ." Subsection (b) of General Statutes § 46b-124 states, in pertinent part, "All records of cases of juvenile matters, as provided in section 46b-21, except delinquency proceedings . . . shall be confidential and for the use of the court in juvenile matters, and open to inspection or disclosure to any third party, only upon order of the Superior Court."
The standard for intervention is addressed in statutes, case law and the rules of practice. A right to intervene in a neglect, uncared for or dependency proceeding, absent good cause shown, is granted to persons related to the child by blood or marriage when a child is in the temporary custody or committed to the department. Such relatives must be either seeking temporary custody or guardianship of the child, and the motion must be filed within 90 days of the preliminary temporary custody hearing, or within ninety days from the date a child's prior placement disrupted, and is considered only if the child is not already placed with another relative. General Statutes § 46b-129(d). Absent the applicability of this provision, intervention for other purposes, including seeking visits with a child, is usually within the sole discretion of the court.
When § 46b-129(d) was enacted in 2009, then existing subsection (c), which permitted a grandparent the right to intervene in a neglect, uncared for or dependency case, "absent good cause shown," was repealed.
Practice Book Rule 35a-4(c) permits the court to consider certain enumerated factors as the requisites for permissive intervention, set forth in Horton v. Meskill, 187 Conn. 187, 445 A.2d 579 (1982), as opposed to intervention as a matter of right. These include the timeliness of the motion, whether the movant has a direct and immediate interest in the case, whether the movant's interest is not adequately represented by other parties, whether the intervention may cause delay in the proceedings or other prejudice to the existing parties, and the necessity of or value of the intervention in terms of resolving the controversy before the judicial authority. "A ruling on a motion for permissive intervention would be erroneous only in the rare case where such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court's discretion." Id., 197.
Intervention routinely has been denied to biological relatives and foster parents who previously have cared for the child in their home, even if they hoped to adopt the child. See In re Joshua S., 127 Conn.App. 723 (2011) (foster parents seeking to intervene to object to a transfer of guardianship to maternal aunt have no colorable claim to intervention as a matter of right); In re Vincent D., 65 Conn.App. 658, 783 A.2d 534 (2001) (foster and pre-adoptive parents are barred from intervening in the adjudicatory phase of termination petition, and whether or not intervention permissible in dispositional phase is in court's discretion); In re Denzil A., 53 Conn.App. 827, 733 A.2d 298 (1999) (the purpose of the intervention of a grandparent in a termination of parental rights case does not include the right to effect an adoption or to obtain custody for the grandparent but is solely for the purpose of affecting the termination itself); In re Baby Girl B., 224 Conn. 263, 618 A.2d 1 (1992) (denying pre-adoptive parents' motion to intervene to object to reunification with mother after determining they had no legal interest at stake); Nye v. Marcus, 198 Conn. 138, 502 A.2d 869 (1985), superseded by statute on other grounds as stated in Terese B. v. Commissioner of Children Families, 68 Conn.App. 223, 230 n. 10, 789 A.2d 1114 (2002) (prior foster parents had no standing to petition for a writ of habeas corpus or to seek to enjoin the department's placement of the child in a new, preadoptive home); In re Juvenile Appeal (Docket No. 10718), 188 Conn. 259, 449 A.2d 165 (1982) (denying foster parent right to intervene in a termination of parental rights proceeding); Eason v. Welfare Commission, 171 Conn. 630, 370 A.2d 1082 (1976) (denying foster parent right to intervene and move for revocation of commitment); Bridgeman v. Ragaglia, 47 Conn.Sup. 273 (Conn.Super.Ct. 1999) (mother and stepfather of the biological father whose parental right had been terminated lacked standing to institute a habeas action or to intervene to seek custody of their son's biological child); In re Jason P., 41 Conn.Sup. 23, 30, 549 A.2d 286 (1988) (paternal grandmother's motion to intervene as party in petitions for neglect and for termination of parental rights denied after her son, child's father, consented to termination of his parental rights). Thus, there has been longstanding recognition that the unlimited extension of any third-party rights to the custody of or visitation with a child awaiting adoption cannot be tolerated. The door is not intended to be "open . . . to all unrelated third parties who happened to feel a bond of affection with a child." Doe v. Doe, 244 Conn. 403, 485, 710 A.2d 1297 (1998).
In 1988, by enacting P.A. 88-332, §§ 3 and 4, subsequent to the ruling in Nye, the legislature amended the habeas corpus statute, General Statutes 52-466, adding subsection (f), which permits a foster parent or approved adoptive parent to file a petition for a writ of habeas corpus regarding the custody of any child who had been placed in his or her care for "a continuous period of not less than ninety days in the case of a child under three years of age at the time of such application and not less than one hundred eighty days in the case of any other child."
In construing statutes, it is presumed that "there is a purpose behind every sentence, clause or phrase used in an act and that no part of a statute is superfluous." Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984); Castagno v. Wholean, supra, 239 Conn. 346. Subsequent to 1983, the date of the enactment of § 46b-59, the legislature passed a number of measures within the statutory provisions governing child protection proceedings that would be entirely superfluous if § 46b-59 granted the right of any person, at any time, to seek visitation with a child in the custody of the department.
In 1988, by enacting P.A. 88-332, §§ 3 and 4, subsequent to the ruling in Nye v. Marcus, supra, 198 Conn. 138, the legislature amended the habeas corpus statute, General Statutes 52-466, adding subsection (f), which permits a foster parent or approved adoptive parent to file a petition for a writ of habeas corpus regarding the custody of any child who had been placed in his or her care for "a continuous period of not less than ninety days in the case of a child under three years of age at the time of such application and not less than one hundred eighty days in the case of any other child." This amendment was described "as an additional safeguard for children about to be moved from foster homes where they were well known into other placement, related or not . . . [T]his was to provide a forum where a foster parent could present to a court reasons why the exercise of the agency's discretion would not be in the child's best interests. An earlier attempt to broaden the amendment to give the habeas right not only to foster parents but also to any person other than a foster parent: was unsuccessful." Alfano v. Richardson, Superior Court, judicial district of Hartford at Hartford, Docket No. CV94-0539266 (August 28, 1995, Brenneman, J.) [ 15 Conn. L. Rptr. 85].
This statute superseded, in part, Nye v. Marcus, supra, 198 Conn. 138.
Pursuant to General Statutes § 17a-10a, (Public Acts 2003, No. 03-243, § 5), the department is only obligated to ensure visitation to parents and siblings once a child enters its care pursuant to an order of temporary custody or commitment. This statute stops short of requiring visits when the department is appointed statutory parent. In the case of In re Justin F., 116 Conn.App. 83, 109 A.2d 707 (2009), the Appellate Court indicated that this statute permits the department to determine the "contours" of visitation between parents and their committed children, and that parents who disagree with the department's plan regarding visitation are entitled to appeal in accordance with the Uniform Administrative Procedures Act, General Statutes § 4-166 et seq.
Section 17a-112(b) (Public Acts 2000, No. 00-137, § 1), states that after a termination of parental rights, "There shall be no presumption of communication or contact between the birth parents and the intended adoptive parent in the absence of a post adoptive cooperation agreement." Such an agreement may only be approved if the parents have voluntarily consented to the termination of their parental rights. § 17a-112(b)(3). See also Michaud v. Wawruck, 209 Conn. 407, 551 A.2d 738 (1988) (public policy does not forbid an agreement about visitation rights between a genetic parent and adoptive parents).
General Statutes § 46b-129(p), (Public Acts 2001, No. 01-149, § 1), permits a sibling of a child in placement the right to file a motion for visitation of a child in the custody of the department. There would have been no need for such a provision if any third party has a right to petition for such visitation with a child in the department's custody under § 46b-59.
Although not at issue here, the court believes that § 46b-59 also has no applicability to any child who is in the temporary custody or committed to the department, despite the rather cursory holdings in several cases which long preceded the more thorough and questioning analysis of the statute in Weidenbacher, Castagno, and Roth. See Temple v. Meyer, 208 Conn. 404, 544 A.2d 629 (1988) (former boyfriend who originally brought action seeking custody of former girlfriend's child, mistakenly believed to be his, permitted to amend his claim to one seeking visitation); In re Jennifer P., 17 Conn.App. 336, 663 A.2d 196, cert. denied, 211 Conn. 801, 559 A.2d 1136 (1989) (former foster parent permitted to seek visitation).
In 1998, (Public Acts 2001, No. 01-142, § 8), the legislature amended General Statutes § 46b-129(o) and changed the words "standing" to "right to be heard" for foster parents in matters regarding a foster child who lives with such foster parents for no less than six months. The legislature deliberately chose not to confer party status or standing to intervene on such providers. This section was again amended in 2007 (Public Acts 2007, No. 07-174, § 3) to permit prospective adoptive parents and relative caregivers the right to be heard and comment on the best interests of a child who has lived with them within the past year, but again, the legislature did not confer party status or the right to intervene on such persons. If foster parents, prospective adoptive parents and relative caregivers could routinely invoke § 46b-59, these provisions would be entirely undermined.
Absent agreement or the granting of a motion to stay a judgment upon appeal, whether or not to continue to permit visitation to even a parent post-termination is intended to be left to the sound discretion of the department in its role as statutory parent. A number of trial courts have declined to order any visitation upon terminating parental rights. In the case of In the Interest of Felicia B., Superior Court, judicial district of Middlesex, Child Protection Session at Middletown, 1998 Ct.Sup. 15649 (December 29, 1998, Quinn, J.), affirmed, 56 Conn.App. 525, 743 A.2d 1160 (2000), the trial court noted that the purpose of a judgment terminating parental rights, inter alia, is to vest legal authority over the child with the statutory parent (the department in that case) and to grant such statutory parent the right to make decisions about the child's future life and his contact with other persons based on his or her current best interest:
When disposition is being considered in termination of parental rights cases, any visitation order would be inconsistent with the judgment being sought. The purpose of such a judgment is to vest legal authority over the children with the statutory parent or the guardians and to grant such entities or individuals the right to make decisions about the children's future life and their contact with others. As reflected in the language of § 46b-59 . . . when parental rights or adoption are being considered by a court of competent jurisdiction, termination of visitation orders issued under that statute may also be ordered.
In another decision, In the Interest of Steven J., Superior Court, judicial district of Middlesex, Child Protection Session at Middletown, 2000 Ct.Sup. 8398 (July 18, 2000, Quinn, J.), the court reiterated that in a termination of parental rights case, any visitation order was inconsistent with such a judgment. See also In re Melody L., judicial district of Middlesex, Child Protection Session at Middletown, Docket No. H12-CP02-008535-A (March 30, 2007, Bear, J.) [ 43 Conn. L. Rptr. 140], aff'd, 290 Conn. 131, 962 A.2d 131 (2009) (even assuming that the children can utilize § 46b-59 as a basis on which to seek continuation of visitation with their biological mother, any visitation order entered by this court after the termination of such mother's parental rights would be inconsistent with such termination); In re Travon W., Superior Court, judicial district of Middlesex, Child Protection Session at Middletown, Docket No.H12-CP04-010019-A (April 1, 2008, Wilson, J.) (court did not order post-termination visitation but instead made recommendation for visitation between child and father); In re Kyon G., judicial district of Middlesex, Child Protection Session at Middletown, Docket No. H12CP03-008877-A (May 11, 2007, Wilson, J.) (court recommended but did not order post-termination and post-adoption visitation if therapeutically appropriate); In re Meagan B., Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown, Docket No. F04-CP-02-005358-A (August 31, 2005, Jongbloed, J.) (in considering request by father for post-termination visitation, court stated visitation is not appropriate but encouraged the department to consider one final visit if it would be in the children's best interest); In re Daniel M., Superior Court, judicial district of Middlesex, Child Protection Session at Middletown, 2002 Ct.Sup. 10899 (August 27, 2002, Rubinow, J.) (the lessons of both Troxel and Roth inform the court's determination that DCF acted reasonably in honoring the mother's desire to preserve her own relationship with her child while he was in department custody by minimizing his exposure to his grandmother, who had served as the child's custodian in the past); In the Interest of Kachainy C., Superior Court, judicial district of Middlesex, Child Protection Session at Middletown, 2000 Ct.Sup. 8710 (July 26, 2000, Rogers, J.), aff'd, 67 Conn.App. 401, 787 A.2d 592 (2001) (court "strongly recommended" but did not order the department to arrange for post-termination visitation by mother); In re Nathaniel S., Superior Court, judicial district of Hartford/New Britain at Plainville 1992 Ct.Sup. 3222, (April 10, 1992, Goldstein, J.) (court did not order post-termination visitation but expressed its expectation concerning the wishes of the child if such wishes were in his best interest).
If the plaintiffs' position is correct, they possess a statutory right to seek visitation with a child eligible for adoption that is not afforded to a child's parents, siblings, relatives, and licensed foster parents.
When a child is abandoned by his parents and placed with a state agency, the state's paramount concern must be the swift and suitable placement of the child. "[Many states] have concluded that the creation of new, enforceable rights, even in grandparents or other biological relatives, would inevitably delay adoption, as child placement decisions were transferred from the state welfare agencies to the courts." Mullins v. State of Oregon, 57 F.3d 789, 797 (9th Cir. 1995). See also Matter of the Adoption of a Child By W.P. and M.P., 748 A.2d 515 (N.J. 2000) (an award of grandparent visitation under the Grandparent Visitation Act conflicts with the overriding public policy of the New Jersey Adoption Act when a child is adopted by a non-relative intact family), Kasper v. Norfeldt, 815 P.2d 747 (Utah App. 1991) (grandparent visitation statute does not apply where rights of natural parents are terminated). These holdings recognize the need by the department in post-termination cases to curtail the previous visitation rights of close relatives and presumably support the agency's actions here, post-termination, to deny such rights to non-relatives. Allowing § 46b-59 to apply to anyone seeking visitation with a child for whom the department is statutory parent would open a flood gate for intrusive petitions at a time when the department must focus on finding the child a permanent home.
General Statutes § 17a-93(e) provides for the complete severance of the parent-child relationship after a termination of parental rights judgment is entered:
Termination of parental rights means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of such child or the religious affiliation of such child . . .
Furthermore, under General Statutes § 45-64a, adoption creates new legal relationships in which the adopting parents are completely substituted for the genetic parents of an adopted person.
Consequently, were the plaintiffs to seek visitation of Andrew from his future adoptive parents, they would be unable to meet the factual predicates mandated under Roth v. Weston. Even if pre-adoption, the department permitted visitation or was ordered to allow it between Andrew and the plaintiffs, it is questionable whether a court would consider the extension of any such visitation rights post-adoption absent the written consent of the adoptive parents, and it is clear that § 46b-59 would permit the court to vacate any such visitation orders.
Based on the foregoing analysis of the related statutes and case law, the court concludes that a visitation application pursuant to § 46b-59 has no legitimacy when it comes to a child whose parents' rights have been terminated and the department has been appointed statutory parent. No court should entertain such an application post-termination. At the point that a judgment terminating parental rights is determined to be in the best interest of a child, achieving permanency, preferably adoption for that child, whenever possible, is the paramount goal of the department in its role as statutory parent. Accordingly, the determination as to who may have contact with the child post-termination should be left to the sole discretion of the department absent a stay of the execution of the termination judgment or an agreement. To hold otherwise would create unjustifiable complications. If any person can file a § 46b-59 application against the department as statutory parent, terminated parents, former relative caretakers of the child, and former foster parents would easily meet standing requirements to seek visitation orders. The existence of such orders could prove impermissibly chilling from the point of view of a pre-adoptive foster parent or any other prospective adoptive parent. This is why the law discourages vesting visitation rights in a parent whose rights have been terminated (absent the agreement of the proposed adoptive parent), and why the trial courts routinely do not issue orders of visitation post-termination absent a stay of the judgment of termination entering when an appeal is filed by the parent or the child. In re Melody L., supra, 290 Conn. 172-73. The ultimate goal is to avoid any obstacle to the child's need for a secure and stable home. Although the department, as statutory parent, may not have the identical constitutional interest as a biological or adoptive parent before a judgment of termination of parental rights is rendered, by statute it fulfills a parental role until a permanent home can be secured for the child. See General Statutes § 17a-93(f).
As noted earlier in this decision, pursuant to General Statutes § 17a-10a, our Appellate Court has held that it is the department, rather than the court, that determines what visitation is appropriate even when children are only in its temporary custody or committed. See In re Justin F., supra, 116 Conn.App. 83.
"[No] child can grow emotionally while in limbo, never really belonging to anyone except on a temporary and ill-defined or partial basis . . ." (Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 494, 940 A.2d 733 (2008). At this stage of Andrew's legal status, the court has granted the petition to terminate parental right of his biological parents. A pre-adoptive home may have been identified. Achieving permanency for him given his indisputable special needs, which are described by all of the parties in their briefs, is especially critical. His interest in achieving a permanent home eclipses any other asserted interest in this case.
On the date the court heard arguments on the motion, Andrew's preadoptive foster mother appeared and requested to be heard, a request the court did not grant because it was not conducting a hearing concerning Andrew's child protection case. See General Statutes § 46b-129(o).
Consistent with federal legislation in this area, the state statutory scheme evidences the strong legislative policy that children will not be allowed to drift aimlessly through foster care, and that the department must affirmatively plan for, and take timely action, to achieve permanency for children. See In re Darien S., 82 Conn.App. 169, 174-75, cert. denied, 269 Conn. 904, 852 A.2d 733 (2004); General Statutes § 17a-111a(a). The issue of standing must be viewed in the context of the child's interest in permanency and the state's parens patriae duty to ensure a permanent placement as soon as possible. The state's interest in finality in this area is "unusually strong . . . There is little that can be as detrimental to a child's sound development as uncertainty." Lehman v. Lycoming County Children's Services Agency, 458 U.S. 502, 513, 102 S.Ct. 3231, 73 L.Ed. 928 (1982); In re Jonathan M., 255 Conn. 208, 233, 764 A.2d 739 (2001).
See the Adoption and Safe Families Act (ASFA), 42 U.S.C. §§ 671(a)(15)(A), 675(5)(E).
The paramount purpose of our termination of parental rights and adoption laws is the compelling interest in locating a stable and permanent home for a child in a timely fashion. This strong public policy should not be undermined by the forced imposition of visitation actions instituted by biological family members, or even worse, by persons with a tenuous nexus to the child. To hold that § 46b-59 is applicable to a child for whom the department is statutory parent will impermissibly qualify or impede many adoptions, effectively undermining them. The legislature did not intend that § 46b-59 create third-party visitation rights to children who have been freed for adoption. Absent agreement, such children and their new or prospective adoptive families must be free from such intrusions.
CONCLUSION
Accordingly, the department's motion to dismiss is granted. As the plaintiffs lack standing to file a petition under § 46b-59 to visit with a child for whom the department is statutory parent, this court lacks subject matter jurisdiction.