Opinion
Nos. H12-CP11-013639-A, H12-CP11-013640-A, H12-CP11-013641-A
April 29, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE
On January 3, 2011, the Department of Children and Families (DCF) filed neglect petitions alleging that the children are being denied proper care and attention and permitted to live under conditions injurious. To substantiate the allegations of the petition, DCF attached an addendum to petition of neglect and a summary of facts substantiating neglect, dated January 3, 2011, which are incorporated by reference. See Practice Book § 33a-1. General Statutes § 46b-129(a) provides that "the Commissioner of Children and Families . . . having information that a child . . . is neglected . . . may file with the Superior Court that has venue over such matter a verified petition plainly stating such facts as bring the child . . . within the jurisdiction of the court as neglected . . . within the meaning of section 46b-120 . . ." (Emphasis added.)
On April 10, 2011, respondent mother filed a motion to strike neglect petitions. DCF filed an objection on April 21, 2011. The pleadings were accompanied by an appropriate memorandum of law. See Practice Book § 34a-17. On April 25, 2011, DCF filed a withdrawal of the neglect petition for the sibling, Kobe H. (b. 10/3/01). At the motion hearing on April 26, 2011, the attorney for the children supported the motion to strike.
Practice Book § 34a-15(a) provides in relevant part: "Whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any petition, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested petition or part thereof." The standard of review for a motion to strike is well-known. The court must accept as true all well pleaded facts. Peter Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270 (1998); Parsons v. United Technologies Corp., 243 Conn. 66, 68 (1997). A motion to strike requires no factual findings by the trial court. Vacco v. Microsoft Corp., 260 Conn. 59, 65 (2002). The allegations must be construed in the light most favorable to pleader. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772 (2002); RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994). The court must determine whether pleader stated a legally sufficient cause of action. Parsons v. United Technologies Corp., supra, 738 Conn. 68. The court cannot rely on facts outside of pleading. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348 (1990).
The facts alleged by DCF lack sufficient specificity that the children are being "denied proper care" or are living under "conditions injurious." The petitions do not adequately submit the material issues to the court. See Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988). Therefore, the petitions are appropriately stricken under governing law. See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). The motion to strike the neglect petitions is granted.
Practice Book § 34a-19 provides that: "Within fifteen days after the granting of any motion to strike, the petitioner may file a new petition; provided that in those instances where an entire petition has been stricken, and the petitioner fails to file a new petition within that fifteen-day period, the judicial authority may, upon motion, enter judgment against said party on said stricken petition."
SO ORDERED