Opinion
No. H-12-CP0610882-A
June 16, 2009
MEMORANDUM OF DECISION
Motion to Reargue
On April 29, 2009, this court rendered a decision regarding the petitioner, Susan I. Hamilton, Commissioner of Department of Children and Families' termination petition ("petitioner") and the maternal grandmother's ("MGM") motion to transfer guardianship. After reviewing all of the evidence and making the requisite findings of fact to support a transfer of guardianship, this court granted the MGM's motion to transfer guardianship of Yarisha F. to the maternal great grandmother ("MGGM"). This court ordered that certain prerequisites be met before the actual transfer take place. The court ordered a period of visitation between Yarisha and MGGM and the receipt of the Interstate Compact Study of the MGGM, which had been outstanding for a year. The court did not teach the merits of the termination petition in light of it's ruling on the motion to transfer guardianship.
On May 6 and 15, 2009, the petitioner filed motions to reargue in accordance with Practice Book §§ 11-11 and 11-12. On May 6, 2009, the petitioner also filed a motion to reopen the evidence in accordance with Practice Book § 34a-1. In her motion to reargue, the petitioner requests this court to; (a) vacate its orders transferring guardianship; (b) allow the petitioner to reopen the evidence; and (c) decide the merits of the termination of parental rights petition that was filed on March 14, 2008. In support of her motion to reargue, the petitioner, incorrectly claims that this court's decision was "based largely in part on the receipt of a favorable [Interstate Compact Placement of Children] ICPC report approving placement." In support of her motion to reopen the evidence the petitioner claims that there was newly discovered evidence that would directly impact the placement of the child and the procedures set forth in the ICPC, that said newly discovered evidence was not cumulative and would likely produce a different result than the court orders and that said evidence directly impacts the contingency for placement of the child that the court set forth in its orders issued on April 29, 2009. The petitioner's claim that this court's decision to transfer guardianship of Yarisha to MGGM was "based largely in part on the receipt of a favorable ICPC report approving placement" is incorrect. This court, however, will grant the petitioner's motion to reargue solely to clarify the court's ruling.
There is no statutory or Practice Book authority establishing standards for a motion to reargue. A motion to reargue must be filed within twenty days from the issuance of the decision. Practice Book § 11-12(a). The underlying motions were date stamped on May 6 and 15, 2009 and therefore were filed "within twenty days from the issuance of notice of the rendition of the decision or order which is the object of the motion." The motions to reargue were therefore timely filed.
"[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It may also be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court . . . A motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Citations omitted; internal quotation marks omitted.). Gibbs v Spinner, 103 Conn.App. 502, 507, 930 A.2d 53 (2007); Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).
In support of her motion to reargue, the petitioner claims that the court improperly relied on receipt of an anticipated favorable ICPC report from Florida which was not in evidence. This court clarifies it's ruling as follows: Accordingly, based upon the aforementioned, this court grants the MGM's motion to transfer guardianship of Yarisha to MGGM. However, in accordance with the ICPC, said transfer shall not become effective until receipt of the pending ICPC report of MGGM that was requested in January 2008. This court orders delay of the effective date of the transfer until receipt of the ICPC report in accordance with General Statutes § 17a-175 Articles III and V, subsections (d) and (a) respectively, in the ICPC. It is this court's interpretation of that statutory provision, however, that while DCF and this court have an obligation to comply with said statute so as not to be in violation of the Interstate Compact Placement of Children, this court is not required to accept the findings of the ICPC study as evidence in it's determination that transfer of guardianship to an out-of-state relative is warranted, where there is evidence in the record, independent of a ICPC report, to support a transfer of guardianship. It is the petitioner's position that pursuant to General Statutes § 17a-175, where the Department of Children and Families ("DCF") has custody of a child, the court does not have jurisdiction to transfer guardianship of that child to an out-of-state caretaker absent a positive ICPC study from the receiving state This court disagrees with the petitioner's interpretation of § 17a-175. It is this court's interpretation of § 17a-175, that a court has jurisdiction to grant a transfer of guardianship to an out-of-state relative where there is sufficient evidence, independent of a ICPC study, to support the suitability and worthiness of the caretaker, and that transfer is in the child's best interest. Thus, independent of any anticipated ICPC report, positive or negative, there was overwhelming evidence introduced at trial, upon which this court relied, demonstrating that MGGM is a suitable and worthy caretaker and that placement of Yarisha in her care would be in Yarisha's best interests.
In New Jersey Division of Youth and Family v, K.S., 353 N.J.Super. 623, 802 A.2d 721 (2002), the Appellate Division of the Superior Court of New Jersey, affirmed the trial court's decision to place the children with their maternal grandparents in Pennsylvania, despite a negative report from the Pennsylvania children and family agency. The court held that the ICPC does not apply to a relative placement and, even if the ICPC was controlling, `[r]egardless of Pennsylvania's refusal to approve the placement, the trial court's determinations that the maternal grandparents were able and willing to assume custody of the children and that placement of the children with their maternal grandparents would not be detrimental and was in the best interest of the children are fully supported by the record. The trial court's order is affirmed." (Emphasis added.) (Citations omitted.) Id. 636-38. The New Jersey court aptly held that "[t]o view the ICPC as a set of rigid rules would circumvent its goals and the court's ability to achieve those goals. The court's paramount duty in child welfare cases is to protect the best interest of the children . . . The overall design of the ICPC is to facilitate placements that are in the best interest of the children . . . It is the policy of the DYFS to place whenever possible, children with relatives when those children are removed from the custody of their parents . . . To advance the goals of the ICPC and the policy of DYFS, the court must have a broad discretion to evaluate and assess a relative's ability to care for children . . ." Id. at 636.
While the majority of other jurisdictions have applied the ICPC to an out-of-state relative placement; See In re Pima County Juvenile Action No. 18635 v. Fisher, 125 Ariz. 430, 610 P.2d 64 (1980); In re Luke L., 44 Cal.App. 4th 670, 52 Cal.Rptr.2d 53 (1996); In re T.M.J., 878 A.2d 1200, 1203 (D.C. 2005); Dept. of Children Families v. Fellows, 895 So.2d 1181, 1185 (Fla.App. 2005); In re Adoption of Infants H., Supreme Court of Indiana, Docket No. 29S02 0904 CV 140 (April 2009); In re Welfare of Child T.T.B. G.W., 724 N.W.2d 300 (Minn. 2006); In re Matter of Adoption of Child R., 14 Misc.3d 806, 828 N.Y.S.2d 846 (N.Y.Fam.Ct. 2006); In re Paula G., 672 A.2d 872, 874 (R.I. 1996): In the Interest of R.R., 156 Wis.2d 824, 458 N.W.2d 390 (Wis.App.Ct. 1990), Connecticut appellate courts have not addressed this issue. Judge Olear in In re Kiarra S., Superior Court, child protection session at Middletown (February 11, 2009) applied the ICPC based on the plain language in Article III of § 17a-175 and denied the mother's request to transfer guardianship of the child to the maternal uncle who resided in Oklahoma.
This court therefore clarifies it's April 29, 2009 ruling on MGM's motion to transfer guardianship by stating that it's decision to grant a transfer guardianship of Yarisha to MGGM was independent of any anticipated ICPC report, and based solely on the overwhelming evidence submitted at trial on December 15 and 16, 2008, which clearly supported this court's finding that MGGM is a suitable and worthy caretaker and that transfer of guardianship of Yarisha F. to MGGM is in Yarisha's best interest. This court's orders regarding visitation by MGGM and the actual placement of Yarisha shall remain as issued in the court's original decision of April 29, 2009.
In light of the court's ruling on the motion to reargue, the petitioner withdrew her motion to reopen the evidence.
It is so ordered.
1 In accordance with Connecticut General Statutes §§ 46b-124 and 45a-175, and the Connecticut Practice Book § 32a-7, the names of the parties involved in this case are not to be disclosed and the records and papers of this case shall be open for inspection only to persons having a proper interest therein, and only upon order of the Superior Court.
In addition to determining that there was sufficient evidence independent of Pennsylvania's negative ICPC report to support an out-of-state transfer of guardianship of the children to their maternal grandparents, the Appellate Division determined, that the ICPC did not apply to the trial court's order because it sent the children to live with their grandparents in Pennsylvania, and, therefore, did not constitute a "placement" as that term is used in the compact. In construing Article II of the ICPC, which is § 17a-175 Article II(a) of the Connecticut General Statutes, and relying on McComb v. Wambaugh, 934 F.2d 474 (3d Cir. 1991), the New Jersey court concluded that the ICPC does not apply when a court in the sending state directs that children be placed with members of their natural family in another participating state. In McComb, the Third Circuit conducted a thorough examination of the history of interstate compacts, the interrelationship between compacts and state statutes, the purpose and legislative history of the ICPC, and the regulations promulgated by the Association of Administrators of the Interstate Compact on the Placement of Children and concluded that the ICPC does not apply to the placement of children with out-of-state natural parents or relatives. McComb, supra at 479-82. The McComb court declined to apply the ICPC because the child at issue there had been placed with his natural family and not with a substitute family. The Third Circuit held that the ICPC did not govern a sending state's placement of children with their natural family in another state. Id. at 482. There are several state courts that have also held the ICPC inapplicable to placement of children with out-of-state natural parents or relatives. See, e.g. Ark Dept. of Human Serv's. v. Huff, 65 S.W.3d 880 (Ark. 2002) (parent placement); State Dept. of Children Family Services v. L.G., 801 So.2d 1047 (Fla.Dist.Ct.App. 2001) (parent placement); In re Interest of Eric O., 617 N.W.2d 824 (Neb.Ct.App. 2000) (grandparent placement); In re Johnny S., 47 Cal.Rptr.2d 94 (Cal.Ct.App. 1996) (parent placement); Tara S. v. Superior Court, 17 Cal.Rptr.2d 315 (Cal.Ct.App. 1993) (patient placement). There are other states which have applied the ICPC to out-of-state placements with natural family members. See In re T.N.H., 70 SW.3d 2 (Mo.Ct.App. 2002); Arizona Dept. of Economic Sec. v. Leonardo, 22 P. 3rd 513 (Ariz.Ct.App. 2001): Adoption of Warren, 693 N.E.2d 1021 (Mass.App.Ct. 1998); Matter of Tsaporo Z., 195 A.D. 348 (N.Y.App.Div. 1993). Connecticut appellate courts have not addressed this issue. While this court's decision not to apply the ICPC to this case is not based upon an interpretation of the term "placement," this court fad's the Third Circuit's analysis in McComb persuasive.