Opinion
No. FBT-CV10-5029293-S
May 27, 2011
Memorandum of Decision
Plaintiff's Administrative Appeal
The plaintiff mother, Monica S., appeals pursuant to Connecticut General Statute § 4-183, the Uniform Administrative Procedures Act (UAPA), from a final decision of the Department of Children and Families Administrative Hearings Unit (DCF), dated July 6, 2010. The appeal pertains to a Treatment Plan Hearing for the minor children, Jyziah G. and Jy-lynn'yce S., which was requested by mother on October 13, 2009, to contest the placement of her children. It is mother's primary contention that the children were placed in a home at a distance further than what is contemplated by the DCF guidelines.
The hearing went forward on December 17, 2009; February 18, 2010 and March 16, 2010. The Hearing Officer dismissed the administrative hearing on March 16, 2010, opining that DCF demonstrated that the children's placement is appropriate in meeting their needs and problems. (Tr. p. 183.) On April 13, 2010, the Hearing Officer vacated the dismissal and issued a Proposed Final Decision, in accordance with the above opinion, Mother filed an Exception With the Proposed Final Decision on April 26, 2010. Oral Arguments on mother's exception were held on June 17, 2010, before Deputy Commissioner of DCF, Heidi McIntosh. Deputy Commissioner McIntosh's Election to Adopt the Proposed Final Decision was rendered on July 6, 2010. This appeal ensued. DCF submitted a certified copy of the record and the parties filed briefs in support of their positions. This court heard oral arguments on May 12, 2011.
Law
Pursuant to Connecticut General Statute § 4-183, "[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section." Accordingly, in order to have standing to bring an administrative appeal, a person or entity must be aggrieved. CT Page 12494 Connecticut Business Industry Ass'n., Inc. v. Commission on Hospitals Health Care, 214 Conn. 726, 729, 573 A.2d 736 (1990). Pleading and proof of facts that constitute aggrievement are essential prerequisites to the trial courts subject matter jurisdiction over an administrative appeal. Park City Hospital v. Commission on Hospitals Health Care, 210 Conn. 697, 702, 556 A.2d 602 (1989). In the absence of aggrievement, an administrative appeal must be dismissed for lack of subject matter jurisdiction. Local 1303 Local 1378 v. Freedom of Information Commission, 191 Conn. 173, 177, 463 A.2d 613 (1983).
"The test for determining aggrievement is a two part inquiry: `[F]irst, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision . . .' (Internal quotation marks omitted)." (Emphasis added.) New England Rehabilitation Hospital, Inc. v. CHHC, 226 Conn. 105, 627 A.2d 1257 (1993).
There is no question that mother has a personal and legal interest in the placement of her children in their foster home which is the subject of this appeal. Moreover, the foster home is located approximately 40 miles from Bridgeport, where the plaintiff resides. Necessarily, this distance has caused mother some inconvenience and additional travel time to visit with her children. The court finds that mother is aggrieved for purposes of pursuing this appeal.
At the outset, it is important to underscore that the scope of judicial review of an administrative agency's decision under § 4-183 "is very restricted." (Internal quotation marks omitted.) Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 803, 942 A.2d 305 (2008). "[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Citations omitted; internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 833, 955 A.2d 15 (2008). "Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Hogan v. Dept. of Children Families, 290 Conn. 545, 560-61, 964 A.2d 1213 (2009).
"A Treatment Plan Hearing is a due process proceeding to consider the issues raised by the aggrieved party and determine whether the plan is appropriate to the needs and problems of the child." DCF Policy § 22-7-2. In any treatment plan, the "child's or youth's health and safety shall be paramount in formulating that plan." Connecticut General Statute § 17a-15(a).
Findings of Fact and/or Conclusions of Law
In the Final Decision of Deputy Commissioner Heidi McIntosh, the following facts/conclusions of law were found:
A. The Appellant's daughter, Jy-lynn'yce, was born on September 21, 2006. Her son, Jyziah was born on October 31, 2004.
B. In August of 2008, the Appellant's children were removed from the Appellant's care under an Order of Temporary Custody and placed in foster care. The Department filed Neglect Petitions. In December 2008, an adjudication was entered and the children were returned to the Appellant's care under Orders of Protective Supervision.
C. In March 2009, the Department invoked a 96-hour hold and removed both children from the Appellant's care. Both children were placed in the Boys and Girls Village Safe Home. The Department requested Orders of Temporary Custody. An Order of Temporary Custody was granted in April 2009. On October 13, 2009 the children were committed to the care and custody of the Department.
D. In July 2009, the Appellant's son and daughter were placed in a legal risk foster home. A legal risk foster home is defined as one which is licensed for adoption, but provides foster care for a child who is not legally free for adoption. DCF Policy 48-9-2. Toward the end of September 2009, the children were placed back at the Boys and Girls Village Safe Home. In early October 2009, the children were placed in a new legal risk foster home in New Fairfield, Connecticut consisting of two same gender foster parents.
E. There are many considerations when making placement decisions, but ultimately the Department must focus on the child's best interest. The agency's policies address a number of key factors and variables which must be considered collectively and not in isolation of one another to arrive at the best decision. The decision to place in a legal risk home can be made, as in this matter, on a case by case basis. Here the Department appropriately made this decision based on permanency concerns for the children, as the removal was the children's second placement in a short period of time due to the Appellant's continued problems with substance abuse, mental health and domestic violence.
F. The Appellant is visiting with her children three times a week for a total of four and one-half hours. She resides in Bridgeport, Connecticut which is approximately 40 miles away.
G. The children are bonded with their mother and each other. Jyziah has exhibited aggressive behaviors. Jy-lynn'yce has engaged in sexually suggestive and provocative behaviors.
H. The current foster home is open and supportive of the children in their care. The foster parents utilize appropriate discipline techniques that are appropriate for the Appellant's son and daughter. They are supportive of visitation between the children and the Appellant. They talk to the children in a positive manner about returning to the Appellant's care. The children have made positive progress in their behavioral difficulties since being placed in the current foster home.
I. It would be detrimental to the children's best interest to move the children from their current foster placement.
The Finding of Fact and/or Conclusions of Law of the Deputy Commissioner are substantially the same as those articulated in the Proposed Final Decision of the Hearing Officer.
In her Final Decision, the Deputy Commissioner opined that the children's current placement is appropriate to both children's needs and problems. As to the proximity of the foster home to the Appellant, the Deputy Commissioner concluded that mother was visiting her children three times a week; they are bonded to her and miss her. The placement of the children in a legal risk foster home was made due to the removal of the children from their mother on two separate occasions, within a short time-frame. Deputy Commissioner McIntosh emphasized the quality care and support that these children are receiving with their current foster parents, and the progress they have made since placed with them. As a preliminary matter, the Deputy Commissioner dismissed any claim concerning the foster parents sexual orientation stating that under Connecticut law a state agency cannot discriminate against an individual based on sexual orientation. Connecticut General Statute § 46a-81i.
Plaintiff's Position
The plaintiff's initial position was that DCF deviated from its own policies and procedures by placing the children in a home which was not in close proximity to the mother. (Tr. pp. 3-6, December 17, 2009.) On the third day of the hearing, the plaintiff framed the issues more broadly: did DCF violate its procedures by 1) not placing the children in close proximity to the mother; 2) by placing the children in a foster home in which the parents were of a different religion than the mother, and 3) by placing the children in a legal risk home. (Tr. pp. 174.) At the conclusion of the hearing, plaintiff's counsel added: ". . . but I do believe one of the issues that we have is also the same-sex or same gender partners as an appropriate placement." (Tr. p. 185.)
In her brief, the plaintiff articulated five issues for appeal: "(1) DCF improperly narrowed the scope of the treatment plan hearing to whether the children's physical needs were being met; (2) the placement did not comport with Connecticut General Statute § 46b-129(j) which requires the DCF Commissioner, if possible, to place the children in a home of "like religious faith to that of the parents" of the children; (3) DCF improperly refused to consider the foster parents' sexual orientation as a criterion in placing the children as conflicting with religious beliefs; (4) DCF failed to place the children in close proximity to the children's home as required by DCF policy, and (5) DCF failed to provide adequate information of whether the placement of the children with the foster parents is appropriate to the needs and problems of the children in comparison to other potential foster homes."
Ruling
This court has reviewed the transcript of the Placement Hearing and Exception arguments; it has the Proposed and Final Decisions, as well as the exhibits, and has considered the relevant statutory and case law. The court finds as follows. The first claim articulated by the plaintiff is without merit. DCF did not confine its considerations as to the placement of these children to their physical needs as asserted by the Appellant. The record is replete with evidence concerning the foster parents' emotional, educational, behavioral, and psychological care of Jylnn'yce and Jyziah. One of the foster fathers took off three months from work when the children were placed to ease their transition. DCF has provided the children with services and a placement which holistically address their needs. Accordingly, this claim is dismissed.
After reviewing the record, the court finds no evidence of the foster parents' religion or religious beliefs. Nor, has the plaintiff presented evidence that the sexual orientation of the foster parents conflicts with her religious beliefs. There is one document in evidence that identifies mother's religion as Catholic and Santerian. (Ex.5, p. 3.) The children are identified as Catholic. (Ex. 9 and 10.) The plaintiff has not created a record from which this court can find that there is conflict between the religious beliefs of the foster parents and mother or children. Nor, can the court, based on this information, conclude the foster parents' sexual orientation is in conflict with mother's or the children's religious beliefs. Accordingly, the plaintiff's assertion that DCF refused to consider the foster parents' sexual orientation as conflicting with religious beliefs is without merit. These claims are dismissed.
The Department placed the siblings in a legal risk foster home approximately 40 miles from the mother's home. A legal risk foster home is a placement in which the parents would be willing to adopt the child if he/she became free for adoption. (Tr. p. 26-27, December 17, 2009.) Because the children had been removed from mother on two occasions, the Department decided that a legal risk placement would provide the children with the most opportunity for stability and permanence if mother was unsuccessful in reunifying with her children. Id. Providing permanence and stability to children is a fundamental duty of the Department of Children and Families. See: In re Johnson R., No. M08-CP06-010181-A (July 13, 2009, Bear, J.). This court finds that the Department's placement of these children in a legal risk home was appropriate to their needs and problems.
Pursuant to DCF Policy § 41-19-2 (Principles of Foster Care Matching), "[w]hen a child is placed into foster care, the match shall be made to a foster home in the least restrictive, most family-like setting and in close proximity to the child's home." Moreover, "[c]hildren who are placed with non-related caretakers shall be placed in a foster care setting that serves the best interest of the child, based on the child's individual needs . . . [s]iblings shall be placed in the same foster home unless the documented special needs of one or more siblings preclude placing them together." Id.
The court finds that the location of the foster home was not in close proximity to the mom's residence, accordingly, it does not accord fully with DCF Policy § 41-19-2. As articulated in the plaintiff's brief there is a DCF policy which provides exceptions to the principles of matching. (Policy § 26-55-10, Ex. 19.) Generally, if the initial placement does not conform to the principle of matching, the placement should be considered temporary, unless "it is felt that the current placement best meets the child's needs." Id. Under those circumstances, in lieu of moving the child, the worker should document this in the child's uniform case record. (Ex. 17, DCF Policy § 36-55-10.) While the court could not ascertain from the record whether such a notation was made, it is clear that the children's placement in New Fairfield, CT, despite the distance, more than appropriately addresses the children's needs and problems.
The children are placed together. The foster parents contacted the children's therapist prior to their placement to better understand the needs of the children; one foster father took three months off from work to facilitate a successful transition. Mom has received substantial visitation and transportation to the visits, which have occurred in a variety of settings. The plaintiff is bonded to her children and the foster parents have encouraged the children's relationship with her. The children have progressed psychologically and behaviorally since in the care of these foster parents. Mother is happy with this placement. (Tr. p. 104, February 18, 2010.) It is one of the finest foster homes the children's therapist has ever seen. (Tr. p. 85, February 18, 2010.) Accordingly, while the Department deviated from one of its many criteria for placement of these children, the Department has made significant efforts to facilitate visitation and enable mother to maintain her bond with the children, despite the distance. The foster home is exemplary; it would be detrimental to the children to move them to a foster home closer to mother. The court finds this placement "best" meets these children's needs; therefore, the criteria necessary to invoke the exception in Policy § 35-55-10 has been met.
The last issue addressed in the plaintiff's brief is that the Department failed to provide adequate information to the plaintiff by way of discovery. A written discovery request was never submitted by the plaintiff. Upon review of the record, it appears that during the three days of the administrative hearing, the plaintiff's counsel listed numerous documents and potential witnesses which he wanted produced by the Department. The record also demonstrates that DCF provided many documents, and ensured employees were present and prepared to testify; however, they were never called by the plaintiff. The plaintiff did not testify herself, even on the issue of her religious beliefs. While mother claims that the Department "refused" to provide her with necessary documents, she appears to have been on a "fishing expedition." The testimony confirmed that mother was happy with the placement of her children in their foster home. Nonetheless, she was attempting to hold the Department accountable for deviating from its policies, in any way, when placing these children. The court acknowledges that the Department must adhere to its policies, to the extent possible. The success of this foster home is a testament to the fact that DCF did, primarily, abide by its rules and regulations. This claim is dismissed.
During oral argument, plaintiff's counsel articulated a point which resonated with this court. The Hearing Officer in his Proposed Final Decision, and the Deputy Commissioner, in her Final Decision, refused to consider the issue that the foster parents are of the same sex. Each cited to Connecticut General Statute § 46a-81i, which prohibits State agencies from discriminating based on sexual orientation. This is a misstatement of the law as it pertains to this case. Pursuant to Connecticut General Statute § 45a-726a, "notwithstanding" § 46a-81i, the Department may consider sexual orientation as one factor in deciding the appropriateness of a foster placement. The plaintiff states that she was prevented from pursuing this issue as a result of these rulings, thereby abridging her due process rights.
This court disagrees. The plaintiff raised the foster parents' sexual orientation as an issue only as it conflicts with her religious beliefs. As stated above, the record is insufficient to prove what the mother's religious beliefs are or that the sexual persuasion of the foster parents conflicts with these beliefs. Plaintiff's counsel cross examined the children's therapist on the issue of the foster parent's sexual orientation, and did not establish any negative factors which the Department should have considered when placing the children. Lastly, the plaintiff made no offer of proof as to witnesses or documents on the issue of same sex parents, which were prevented from being admitted into evidence. While this court finds that the rulings related to Connecticut General Statute § 46a-81i were incorrect, the plaintiff has not demonstrated that she was harmed by this error.
This court finds that the record supports the Final Decision of the Deputy Commissioner; accordingly, this appeal is dismissed.
CT Page 12501