Opinion
Nos. NO5-CP08-017705-A, NO5-CP08-017706-A
April 27, 2010
MEMORANDUM OF DECISION RE FOSTER PARENTS' RIGHT TO BE HEARD AND COMMENT
I STATEMENT OF CASE
This decision concerns the interpretation of the foster parents right to be heard and comment pursuant to General Statutes § 46b-129(o). The court heard arguments on the issue on April 12, 2010.
II FINDINGS OF FACT PROCEDURAL HISTORY
The following facts and procedural history are relevant to the resolution of this issue.
On September 2, 2008, a ninety-six hour hold was invoked by the petitioner (DCF or department) on the children, Zachary B. and Nicholas B., due to the unexplained injuries Zachary was presenting with at the hospital. The respondent parents of the children are Steven B. and Stacy B. On September 5, 2008, the court (Conway, J.) granted an order vesting DCF with temporary custody of Zachary and Nicholas. On September 11, 2008, the court sustained, by agreement, the orders of temporary custody.
On December 12, 2008, the maternal aunt, Jodi R., filed a motion for intervention. The court (Olear, J.) denied the motion without prejudice on December 23, 2008.
On January 20, 2009, following pleas of nolo contendere by the respondent parents, the court (Olear, J.) adjudicated the children neglected, and they were committed to the department. The children have resided with the relative foster parents, Jodi R. and Arthur R., since on or about January 22, 2009.
In November 2009, the court heard evidence on the respondent parents' motions to revoke commitment, the father's motions for visitation and the department's motion to review permanency plan. On December 9, 2009, the court issued orders, which included that an additional evidentiary hearing would be held, which is scheduled for July 22 23, 2010.
On January 26, 2010, the relative foster parents filed motions for intervention. The mother filed an objection on February 1, 2010, and the father filed an objection on February 3, 2010. The matter was heard on February 22, 2010. On February 26, 2010, the court (Bentivegna, J.) issued a memorandum of decision denying the motions for intervention.
On March 16, 2010, the foster parents filed a notice of intent to be heard. In the notice, the foster parents seek to present "[s]ubstantive argument and presentation of evidence as to why a proposed plan which places the minor children with the Respondent parents is contrary to the minor children's best interests." On March 16, 2010, the foster parents also filed a request to be present during evidence with their counsel. In the request, the foster parents seek to "authorize [their] counsel and foster parents (unless they are witnesses) to be present during evidence for the limited purpose of observing and to comment on disposition. [Their] counsel does not seek to question witnesses."
On March 25, 2010, the mother filed a motion in limine regarding the foster parents' request to be heard. In the motion, the mother states that she has no objection to the foster parents' right to be heard, but she does object to the foster parents' request for "substantive argument and presentation of evidence." The mother's position is that the foster parents have a right to make an unsworn statement at the close of evidence, which is not subject to cross examination. She contends that since the foster parents are not full-fledged or intervening parties, they do not have the right to present evidence.
On April 9, 2010, the foster parents filed a reply to the mother's motion in limine in which they argued that "[t]he `right to be heard' has to mean more than simply giving an opinion." The mother responded to the foster parents by way of reply filed on April 12, 2010, and argued that "[t]he right of the foster parents to be heard must be limited to the right to make unsworn statements." The mother argued that only a party may introduce evidence and any witness is subject to the right of confrontation.
The foster parents and counsel have notice of the additional evidentiary hearing, which is scheduled for July 22 23, 2010.
Additional facts and procedural history will be provided by the court as necessary.
III DISCUSSION
The issue before the court is the scope of the foster parents' statutory right to be heard and comment. Section 46b-129(o) provides: "A foster parent, prospective adoptive parent or relative caregiver shall receive notice and have the right to be heard for the purposes of this section in Superior Court in any proceeding concerning a foster child living with such foster parent, prospective adoptive parent or relative caregiver. A foster parent, prospective adoptive parent or relative caregiver who has cared for a child or youth shall have the right to be heard and comment on the best interests of such child or youth in any proceeding under this section which is brought not more than one year after the last day the foster parent, prospective adoptive parent or relative caregiver provided such care."
In determining the meaning of the phrase "the right to be heard and comment," the court applies the following well-established principles of statutory construction to § 46b-129(o). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, 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 . . . When a statute is not plain and unambiguous, we also 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." (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007).
Section 46b-129(o) provides that a foster parent has the right to be heard and comment on the best interest of the child. It is unclear from the plain language of the statute what the meaning is of the phrase "right to be heard and comment." The legislative history of § 46b-129 provides some guidance.
In 1998, the legislature gave current and former foster parents who had cared for a child for six months or more standing to comment on the best interest of the child in certain child protection proceedings. Public Acts 1998, No. 98-185, by substitute House Bill No. 5379 (sHB 5379), added the following language to what was then § 46b-129(i): "A FOSTER PARENT WHO HAS CARED FOR A CHILD OR YOUTH FOR NOT LESS THAN SIX MONTHS SHALL HAVE STANDING TO COMMENT ON THE BEST INTERESTS OF SUCH CHILD OR YOUTH IN ANY MATTER UNDER THIS SECTION WHICH IS BROUGHT NOT MORE THAN ONE YEAR AFTER THE LAST DAY THE FOSTER PARENT PROVIDED SUCH CARE." During the legislative debate on sHB 5379, statements were made regarding the intent of the language. In the House of Representatives, Representative Mary Mushinsky indicated that: "This bill clarifies that or gives the foster parents who have cared for the child for six months or more within the last year standing for the limited purpose of commenting on the child's best interest in a variety of Superior Court hearings." 41 H.R. Proc., Pt. 7, 1998 Sess., pp. 2355-56. In the Senate, Senator Del Eads stated that: "This bill extends the right of foster parents by permitting them to comment on the best interests." 41 S. Proc., Pt. 8, 1998 Sess., p. 2456. The term "comment" is ordinarily defined as "an observation or remark expressing an opinion or attitude." Merriam-Webster Online Dictionary, 2010.
In 2001, the legislature modified the law, which had extended legal standing to foster parents, to a more limited right to be heard. Section 8 of Public Acts 2001, No. 01-142, which enacted substitute House Bill No. 6652 (sHB 6652), amended what is now § 46b-129(o) and replaced the word "standing" with the phrase "right to be heard." During the legislative debate on sHB 6652, there was no specific mention as to why this change was made.
House Bill No. 7017 (HB 7017), which was later incorporated into sHB 6652, did contain the following statement of purpose: "To make sure that foster parents have the right to be heard without party status in the case." Raised House Bill No. 7017, 2001 Sess. The judiciary committee, which favorably reported on HB 7017, gave the following reason for the bill in its report: "Fixes a glitch that was discovered last year. Foster parents at a dispositional part of a juvenile hearing need to be able to be heard and have the right to tell the court what they believe is in the best interest of the child. Removes their ability to having standing which then allows them to hire private counsel and be an intervenor." Judiciary Committee Report, House Bill No. 7017, 2001 Sess. In addition, in its analysis of sHB 6652, the office of legislative research (OLR) provided the following explanation: `The bill eliminates `standing' of a child's current foster parents in matters concerning the child's placement or revocation of commitment, and instead gives them the right to be heard. It also eliminates the `standing' of recent foster parents to comment on the best interests of a child who had been in their care for at least six months at all abuse and neglect proceedings. Instead, they have the right to be heard and to comment on the child's best interests." Office of Legislative Research Amended Bill Analysis for Substitute House Bill No. 6652, 2001 Sess.
See Burge v. Stonington, 219 Conn. 581, 593, 594 A.2d 945 (1991) (reviewing bill's statement of purpose to determine legislative intent).
See Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 181, 927 A.2d 793 (2007) (reviewing committee report to discern purpose and intent of statute).
See State v. George, 280 Conn. 551, 575, 910 A.2d 931 (2006) ("[a]lthough OLR summary is not evidence in and of itself of legislative intent, it evinces the [legislature's knowledge of how a statute could be construed]'), cert. denied, 549 U.S. 1326, 127 S.Ct. 199, 167 L.Ed.2d 573 (2007).
Furthermore, courts interpreting the rights of foster parents to participate in child protection proceedings have recognized both the scope and limits of those rights. The Appellate Court found In re Nasia B., 98 Conn.App. 319, 330, 908 A.2d 1090 (2006), that the trial court improperly revoked, sua sponte, the child's commitment to the department. There, the foster parent did not have notice that the court was going to open and revoke the child's commitment, and the foster parent was not present at the time the court acted. Id., 330. The Appellate Court found that the trial court "acted outside the scope of its authority pursuant to § 46b-129(m) and (o), which are intended to provide for the orderly administration of justice, protect the due process rights of the petitioner, the respondents and the foster mother, and to protect the best interest of the child." In re Nasia B., supra, 98 Conn.App. 330.
In the case of In re Vincent D., 65 Conn.App. 658, 783 A.2d 534 (2001), the Appellate Court examined the right of foster parents to participate in a termination of parental rights trial. There, the foster parents had filed a motion to intervene. Id., 663. The trial court granted the motion in part and allowed "the foster parents permission to observe and to comment through counsel on disposition, only." Id., 664. The trial court noted "that standing to comment `is not the same thing as intervention . . . `" Id. The Appellate Court explained that, "[t]o protect the rights of [the child]'s parents, the [trial] court's order spelled out limitations on the foster parents' participation in the termination hearing. The court precluded counsel for the foster parents from questioning any of the witnesses. The court sequestered the foster mother from the courtroom until after the conclusion of her testimony. Although the court permitted the foster father to be in the courtroom throughout, he was directed not to discuss the proceedings with the foster mother until the completion of her testimony." Id. "[T]he foster parents' limited participation in the termination [of parental rights] proceeding occurred in the dispositional phase." Id., 667. In addressing the issue related to the foster parent's involvement in the trial, the Appellate Court found that the trial court acted properly. "[I]n granting the foster parents' motion in part, the court expressly limited its order to permit the foster parents to observe and have standing to comment on disposition . . . Other than the foster mother's testimony as a witness, the foster parents did not participate in the termination proceedings except for their comments with respect to disposition made toward the end of the trial." (Internal quotation marks omitted.) Id., 667.
Based on the legislative history and judicial guidance, the court concludes that the phrase "the right to be heard and comment on the best interests of such child" as used in § 46b-129(o) encompasses the following rights. A qualified foster parent and counsel, if applicable, may be present during the child protection proceeding. Sequestration orders may be entered at the court's discretion if the foster parent is subject to being called as a witness. At the close of evidence, the foster parent has the right to be heard and comment by making an unsworn statement to the court expressing her or his opinion regarding the best interest of the child, without being subject to cross examination. The foster parent may choose to comment instead through counsel. Section 46b-129(o) does not extend to the foster parent or counsel the right to offer evidence or cross examine any witness or otherwise participate in the proceeding.
IV CONCLUSION AND ORDER
For the above-stated reasons, the court enters the following orders. The foster parents have the right to be heard and comment on the best interests of the children by making an unsworn statement to the court at the close of evidence at the hearing scheduled for July 22 23, 2010. Each foster parent may make a statement, or one foster parent may speak on their behalf. The commenting foster parent is not subject to cross examination. The foster parents may choose to comment instead through counsel. At the beginning of the hearing, the court will determine whether either of the foster parents is subject to being called as a witness and enter any appropriate sequestration orders. The testifying foster parent is subject to cross examination.
SO ORDERED.