Opinion
No. D03-CP07-002405-A
May 21, 2009
AMENDED MEMORANDUM OF DECISION
This is a decision on the respondent father's motion to strike the petition of the commissioner of children and families ("DCF") to terminate his parental rights. The mother, who is also a respondent, did not file a similar motion. Practice Book § 34a-15(a) sets forth the scope of a motion to strike in the child protection context:
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; or (2) the legal sufficiency of any prayer for relief in any such petition; or (3) the legal sufficiency of any such petition, or any count thereof, because of the absence of any necessary party; or (4) the joining of two or more causes of action which cannot properly be united in one petition whether the same be stated in one or more counts, that party may do so by filing a motion to strike the contested petition or part thereof.
On March 5, 2008, DCF filed its petition to terminate the parental rights of the father and the mother to Nicholas ("TPR petition"). On April 1, 2008, the plea date stated in the petition, the father and the mother appeared before for the court for their advisements and pleas.
A plea hearing is defined in Practice Book § 26-1(g) as follows: . . .
"Hearing" means an activity of the court on the record in the presence of a judicial authority and shall include . . . (5) "Plea hearing" is a hearing at which (i) A parent or guardian who is a named respondent in a neglect, uncared for or dependency petition, upon being advised of his or her rights admits, denies, or pleads nolo contendere to allegations contained in the petition . . .
On February 17, 2009, ten months and sixteen days after the plea hearing, the father filed his motion to strike the TPR petition. Based on such April 1, 2008, plea date, such motion was untimely. See also page 5 and fn 4, infra. Practice Book § 34a-8, entitled "time to plead," provides that pleadings shall advance within fifteen-day periods:
The father's allegations in his motion to strike are that DCF did not allege "with reasonable particularity the specific conditions which have resulted in the situation . . . of . . . failure to rehabilitate . . ."; when Nicholas "was adjudicated neglected the court did not enter specific steps for the father [p]ursuant to Connecticut General Statutes § 46b-129(j) . . ."; and both DCF and the court failed to issue specific steps to the father. With respect to the "reasonable particularity" allegation, the required summary of facts filed by DCF made part of the TPR petition is fourteen single-spaced pages and contains multiple pertinent references to the father. See, e.g., pages 8-14. The father also claims that the failure of the court to issue specific steps is a violation of his due process rights but he does not cite any decision concluding that such alleged violation, even if true, is a bar to a TPR petition or case. Compare General Statutes § 17a-112(j):
The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required . . .
Specific steps are defined in Practice Book § 26-1(o) as
those judicially determined steps the parent or guardian and the commissioner of the department of children and families should take in order for the parent or guardian to retain or regain custody of a child or youth.
They thus relate to the reasonable reunification efforts referred to in General Statutes § 17a-112(j)(1) that DCF must prove in a TPR case unless the court determines at trial that "the parent is unable or unwilling to benefit from reunification efforts . . ." or "that such efforts are not required . . ."
Commencing on the plea date stated on the petition, pleadings shall first advance within fifteen days from the plea date stated on the petition, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required . . .
The pleadings in neglect and TPR proceedings and their order are as follows:
The order of pleadings shall be as follows:
(1) The petition.
(2) The respondent's or child's motion to dismiss.
(3) The respondent's or child's motion to strike.
Practice Book § 34a-7 provides for a waiver of pleadings if a prior pleading (a motion to dismiss), as occurred in this case, is not filed:
In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.
Thus, to be timely within the terms of Practice Book § 34-8 the respondent father had to file such motion to strike the petition as originally filed on or before April 16, 2008, and this did not occur.
The father's untimely motion to strike was prompted by the Appellate Court decision in In re Justice V., 111 Conn.App. 500, 959 A.2d 1063 (2008), cert. denied, 290 Conn. 911 (2009). Such decision was officially released on December 9, 2008. In re Justice V., supra, 111 Conn.App. at 501. In that case, the court did not order new specific steps after the adjudication of neglect although General Statutes § 46b-129(j) provides for the issuance of such specific steps. In re Justice V, supra, 111 Conn.App. at 502. Because the trial court's decision was on the TPR ground of abandonment, the Appellate Court concluded that the trial court's failure to order specific steps did not preclude a termination of parental rights:
DCF has alleged in the summary of facts that no specific steps were ordered for the father at the time of the neglect adjudication. (Summary of facts, 9.)
. . . The main issue in this appeal is whether the court's failure to order specific steps to facilitate reunification following a finding of neglect precludes the granting of a petition for the termination of parental rights on the ground of abandonment. We conclude, under the circumstances of this case, that the court's failure to order specific steps does not preclude the termination of parental rights for abandonment.
Id.
The adjudicatory ground now alleged in this case by DCF in its petition is as follows (to allege an adjudicatory ground DCF checks a box on the left side of such form next to such ground):
[X] The child/youth has been found in a prior proceeding to have been neglected or uncared for AND the mother [X] [and] father [X] has/have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child/youth, he/she/they could assume a responsible position in the life of the child/youth.
See official judicial form JD-JM-40 Rev. 9-2006. This allegation is based on General Statutes § 17a-112(g)(3)(B)(i). As set forth in the official form there is no reference to specific steps when the adjudicatory ground is based on such subsection (i) of such Ground (B). In its TPR petition, DCF initially alleged Ground (B)(ii) as the sole ground for termination of the father's and the mother's parental rights, but on December 22, 2008, upon its oral motion DCF was allowed by the court to amend its petition to allege the ground set forth in the official form based on Ground (B)(i) (prior adjudication of neglect and failure to rehabilitate) instead of Ground (B)(ii) (child is neglected or uncared for and has been in DCF custody for at least fifteen months). On December 24, 2008, DCF filed a written motion to correct, which motion was granted on December 29, 2008. In contrast to the delineation in the official form of the allegation based on Ground (B)(i), the delineation of the allegation based on Ground (B)(ii) directly refers to the provision of specific steps to a parent:
The respondent father's February 17, 2009, motion to strike the TPR petition still is untimely when measured from such December 29, 2008, order permitting the amendment from subsection (B)(ii) to subsection (B)(i). Such order did not result in any new plea date for the father, but applying the intent of Practice Book § 34a-8, a new fifteen-day period to move to strike the new allegation began on the date of such order.
Practice Book § 34a-1(d) allows amendments at any time prior to a final adjudication.
The child/youth is neglected or uncared for and has been in the custody of the Commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child/youth AND the mother [X] [and] father [X] has/have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child/youth, he/she/they could assume a responsible position in the life of the child/youth.
Subsections (i) and (ii) of General Statutes § 17a-112(j)(3)(B) are phrased disjunctively:
The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . .
(Emphasis supplied.)
However, see e. g., In re Johnson P., 2009 Ct.Sup. 5672, 5708, No. M08-CP06-010181-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., March 26, 2009):
Although because of the presence of a comma after "proceeding" and the absence of a comma after "fifteen months" such subsection can be read so that the specific steps requirement applies only in Ground B(ii) cases (and not in the much more common Ground B(i) cases), the usual practice in this court accepted by DCF and all other parties is to apply the specific steps requirement to such Ground B(i) cases.
However, the official judicial form for termination of parental rights (JD-JM-40 Rev. 9-2006) separately sets forth Ground (B)(i) and Ground (B)(ii) bases for termination, so that a petitioner can select one, the other or both as a basis for termination. And, as set forth above, only such Ground (B)(ii) allegation in such official judicial form specifically refers to the provision of specific steps to a parent. Such Ground B(ii) was added in 1998 to what was then General Statutes § 17a-112(c)(3) and such amendment contained the specific steps language:
The existence of two clauses after subsection (ii) beginning with the conjunctive "and" may also support the application of the specific steps clause both to Ground (B)(i) and (B)(ii):
. . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation . . .
Such second clause "and has failed to achieve such degree of personal rehabilitation . . ." is incorporated in the official form's allegation based on Ground (B)(i).
For the purpose of the pending motion this court accepts the dichotomy set forth in the official form. But see General Statutes § 17a-112(j)(1) relating to DCF's need to prove reasonable efforts to reunify.
In General Statutes § 17a-112(k)(3) there also is a reference applicable to disposition in all TPR cases relating to specific steps:
Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: . . . (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order . . .
Such findings, however are made in connection with the disposition (not the adjudication) of a TPR case:
CT Page 8545
"The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment . . . In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [ § 17a-112(k)]." (Internal quotation marks omitted.) In re Joseph L., 105 Conn.App. 515, 529, 939 A.2d 16, cert. denied, 287 Conn. 902, 947 A.2d 341, 342 (2008). "The seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered . . . There is no requirement that each factor be proven by clear and convincing evidence." (Citation omitted.) In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003).In re Janazia, 112 Conn.App. 69, 97-98, 961 A.2d 1036 (2009).
(B) the parent of a child who (1) has been found by the Superior Court to have been neglected or uncared for in a prior proceeding, OR (2) IS FOUND TO BE NEGLECTED OR UNCARED FOR AND HAS BEEN IN THE CUSTODY OF THE COMMISSIONER FOR AT LEAST FIFTEEN MONTHS AND SUCH PARENT HAS BEEN PROVIDED SPECIFIC STEPS TO TAKE TO FACILITATE THE RETURN OF THE CHILD TO THE PARENT PURSUANT TO SECTION 46b-129, AS AMENDED BY THIS ACT, AND has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . .
Public Act 98-241, § 8. The amended portion is shown by capital letters. See In re Sarah Ann K., 57 Conn.App. 441, 444 n. 5, 749 A.2d 77 (2000). In the Public Act the placement of the commas before and after the new subsection (B)(ii) is evidence that provision to a parent of specific steps was intended to be part of the required elements of the then new Ground (B)(ii) but not part of Ground (B)(i). See Great Country Bank v. Pastore, 241 Conn. 423, 432-33, 696 A.2d 1254 (1997). In In re Shyliesh H., 56 Conn.App. 167, 179 n. 3, 743 A.2d 165 (1999), the Appellate Court recognized this distinction:
General Statutes (Rev. to 1997) § 17a-112 was amended effective July 1, 1998, to include the "specific steps" language in subsection (c)(3)(B)(2). Public Acts 1998, No. 98-241, § 8. General Statutes § 17a-112(c)(3)(B)(2) now provides that in a proceeding to terminate parental rights on the ground that the parent has failed to achieve sufficient personal rehabilitation, "such parent [must have] been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 . . ."
See also In re Jennifer O., 2002 Ct.Sup. 13304, 13319, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Rubinow, J., October 21, 2002); In re Destiny Q., 2001 Ct.Sup. 15941-cp, 15941-db, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Levin, J., November 19, 2001); and In re Jacob R., 2001 Ct.Sup. 13262, 13272-73, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Rubinow, J., September 21, 2001):
. . . Third, the court notes that the petitioner has alleged § 17a-112(c)(3)(B)(1) against Ana C. The respondent apparently assumes that this section, like § 17a-112(c)(3)(B)(2), requires the petitioner to prove that Ana C. had "been provided specific steps to take to facilitate the return of this child to the parent . . ." (Emphasis added.) § 17a-112(c)(3)(B)(2). As has been thoughtfully reasoned in another termination case, "[t]he legislative mandate of § 17a-112(i) to construe the provisions of the termination `liberally . . . in the best interests of any child for whom a petition under this section has been filed' and the drafting history of P.A. 98-241 firmly support the conclusion that specific steps need not be provided where the basis of a failure to rehabilitate claim is a prior adjudication of neglect. See, e.g., JD-JM-40 (Rev. 6-68), p. 4." In re Marcus Anthony R., Superior Court for Juvenile Matters, Child Protection Session (Frazzini, J.; June 28, 2001). For all these reasons, in the present case, where failure to rehabilitate has been clearly alleged under the provisions of § 17a-112(c)(3)(B)(1), not § 17a-112(c)(3)(B)(2), the court declines to impose the requested constraints upon the petitioner.
The Supreme Court very recently has discussed the scope of a motion to strike:
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific actual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly . . . rather than narrowly . . . Greco v. United Technologies Corp., 277 Conn. 337, 347-48, 890 A.2d 1269 (2006).
Sylvan R. Shemitz Designs v. Newark Corporation, 291 Conn. 224, 231-32 (2009).
Thus, even if such motion to strike were timely, given the allegations in the petition and in the mandated summary of facts incorporated in such petition and the possible application of General Statutes § 17a-112(j)(1), DCF's Ground (B)(i) allegations are legally sufficient, provide the father with the process that is due to him under the circumstances of this case and such motion to strike therefore would not be granted by the court. In re Justice V., supra, 111 Conn.App. at 502. See also, In the Interest of Fabian Yovani R., W10-CP07-015281-A, Superior Court for Juvenile Matters, Child Protection Session at Willimantic, (Foley, J., April 15, 2009) (discussing a motion to dismiss for alleged failure to make out a prima facie case).
See petition, page 2:
THE SUMMARY OF FACTS, THE PARTICULAR FACTS UPON WHICH TERMINATION IS SOUGHT, IS ATTACHED HERETO AND MADE A PART HEREOF.
Practice Book 33a-2(b) requires the summary of facts to be filed and served on each respondent:
A summons accompanying a petition for termination of parental rights, along with the summary of facts, shall be served by the petitioner on the respondents . . .