Opinion
No. CV 10 6012430S
July 22, 2011
MEMORANDUM OF DECISION DEFENDANT COMMISSIONER OF DEPARTMENT OF DEVELOPMENTAL SERVICES' MOTION TO DISMISS
In a one-count complaint, the plaintiff, Patricia Sherman, appeals from an order and decree of the Hartford Probate Court, issued on June 3, 2010, pertaining to her daughter, Deborah Banks (Banks). The defendants are Kathleen Kowalyshyn, the court appointed attorney for Banks, Francine Davis Early, the court appointed temporary guardian for Banks, Peter O'Meara, the former commissioner of the department of developmental services (DDS), James McGaughey, the executive director of the office of protection and advocacy for persons with disabilities (OPA), Jeffrey Banks, Banks' brother, and the Hartford Probate Court.
The appeal is brought pursuant to General Statutes § 45a-186.
The pertinent allegations are as follows. Sherman was the plenary guardian of Banks, her mentally handicapped adult daughter, until June 3, 2010. Until that date, Jeffrey Banks was his sister's standby plenary guardian. Banks has resided in the home of a licensed homecare provider for sixteen years. From 1985 to 2009, Banks had overnight visits with Sherman at Sherman's home on a bi-weekly basis.
General Statutes § 45a-669(a) provides in relevant part: "`Plenary guardian of a person with mental retardation' means a person . . . appointed by a court of probate pursuant to sections 45a-669 to 45a-684, inclusive, to supervise all aspects of the care of an adult person, as enumerated in subsection (d) of section 45a-677, for the benefit of such adult, who by reason of the severity of his mental retardation, has been determined to be totally unable to meet the essential requirements for his physical health or safety and totally unable to make informed decisions about matters related to his care."
Sherman further alleges that, beginning in 2009, DDS and OPA engaged in a campaign to remove Sherman as Banks' plenary guardian. During that time, the local police department began an investigation concerning an allegation that Banks was assaulted by a man while she was at Sherman's home. While this investigation was pending, the OPA issued a protective service plan (PSP) that restricted Sherman from taking Banks to Sherman's home, and from visiting Banks without supervision. On November 24, 2009, the police completed the investigation and determined that there was no link between Sherman and the alleged assault.
Nevertheless, Sherman alleges, on May 12, 2010, Kowalyshyn filed an application with the Probate Court to remove Sherman as Banks' plenary guardian and Jeffrey Banks as her standby plenary guardian. As grounds for the application, Kowalyshyn alleged that Sherman had physically abused Banks. On June 3, 2010, the Probate Court held a hearing on the application and issued a decree. Although the court concluded that it did not think that Sherman had hit Banks, it granted the relief sought in the application in that it suspended Sherman's and Jeffrey Banks' plenary guardianships of Banks. The Probate Court also appointed Early to serve as Banks' temporary plenary guardian, suspended Sherman's visitation with Banks until Banks "has indicated a willingness to have it re-commence, or further ordered by this Court," ordered that Banks regularly be offered the opportunity to visit with Sherman and ordered that visitation terms be established by a Dr. Kreibick.
Sherman alleges that the Probate Court violated General Statutes § 45a-675 because Banks was not at the hearing regarding guardianship, and the court failed to find that her presence at the hearing would be detrimental to her well being. She also alleges that the court failed to determine Banks' preference before suspending Sherman's guardianship; improperly relied upon hearsay evidence when it suspended Sherman's guardianship and suspended Sherman's guardianship without evidence that Sherman failed to act in Banks' best interests. In her prayer for relief, Sherman seeks an order which would void the Probate Court's June 3, 2010 decree, reinstate Sherman as Banks' plenary guardian, reinstate Jeffrey Banks as Banks' standby plenary guardian, restore Banks' biweekly overnight visits with Sherman at Sherman's home, and grant her "further or different relief as the court deems necessary to achieve justice."
General Statutes § 45a-675 provides in relevant part: "The respondent shall be present at any hearing for his guardianship, provided the court may exclude him from such portions of the hearing at which testimony is given which the court determines would be seriously detrimental to his emotional or mental condition . . ."
Sherman also asks for an order terminating the PSP. On January 28, 2011, the court granted DDS's motion to strike as to this particular request for relief. Sherman v. Kowalyshyn, Superior Court, judicial district of Hartford, Docket No. CV 10 6012430 (January 28, 2011, Sheldon, J.)
On February 4, 2011, the commissioner of DDS filed a motion to dismiss on the ground that the court lacks subject matter jurisdiction over Sherman's appeal because a subsequent order and decree of the Hartford Probate Court, issued on January 25, 2011, has rendered moot the order and decree of June 3, 2010, the subject of this appeal. The motion has been fully briefed by the interested parties. Oral argument was held at short calendar on March 28, 2011.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint." (Citations omitted; internal quotation marks omitted.) Id., 651-52.
"Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [the] court's subject matter jurisdiction . . ." (Internal quotation marks omitted.) Valvo v. Freedom of Information Commission, 294 Conn. 534, 540, 985 A.2d 1052 (2010). "It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Vredenburgh v. Norwalk Probate Court, 118 Conn.App. 436, 439-40, 984 A.2d 773 (2009). "In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Internal quotation marks omitted.) RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 691, 899 A.2d 586 (2006).
DDS argues that the court lacks subject matter jurisdiction because, on January 25, 2011, the Probate Court issued an order that reinstated Sherman and Jeffrey Banks as Banks' plenary and standby plenary guardians. This order, it maintains, supercedes and renders moot the June 3, 2010 court order that is the basis for Sherman's appeal. In response, Sherman argues that the appeal is not moot because a controversy still exists. Specifically, Sherman points out that in her request for relief, she asks this court not only to reinstate her as her daughter's plenary guardian, but also to void the June 3, 2010 Probate Court order, and for the court to reinstate her overnight visits with her daughter at her home. Thus, Sherman argues that her appeal is not moot because the court may grant her practical relief by setting aside that order and reinstating her visits with Banks. At oral argument, DDS countered that visitation has been occurring, thus there is no practical relief that this court may afford Sherman, and that Sherman has not suffered any other collateral consequences as a result of the decree from which she appeals. Sherman conceded that she has been able to visit Banks, but maintains that the court may still provide her with practical relief by setting aside and voiding the June 3, 2010 order which is stigmatizing.
According to the documents that the parties submitted with their memoranda, in December 2010, Kowalyshyn and Early notified the Probate Court and the other parties that Early had informed Kowalyshyn that Banks wanted Sherman to resume her guardianship role, and Kowalyshyn had confirmed this with Banks. (Plaintiff's Memorandum, Exhibits A and B.) The Probate Court held a hearing, and, on January 25, 2011, issued a decree in which it accepted Early's resignation and ordered Sherman and Jeffrey Banks reinstated as Banks' plenary guardian and standby guardian, respectively. (Defendant's Memorandum, Attachment.) The court also made several additional orders pertaining to Banks' funds and the services that are to be provided to her, but it did not mention the issue of visitation between Banks and Sherman and left the previous order intact.
The decree also states that Sherman's attorney would file a stipulation "will end the Probate Court appeal currently pending in Superior Court."
The Appellate Court has addressed the issue of the mootness of an appeal from probate in several decisions that may be applied to the present matter. The most germane is Stanley's Appeal from Probate, 80 Conn.App. 264, 834 A.2d 773 (2003), which is the case that Sherman relies in her opposition to the motion to dismiss. In that case, the Probate Court issued a decree in which it appointed two individuals as conservators of the estate and the person of Ann Stanley. Stanley appealed the decree to the Superior Court. In the interim, the Probate Court terminated the appointment, noting that Stanley no longer needed a conservator. A month later, the Probate Court issued a decree in which it awarded fees to the conservators, and Stanley filed a separate appeal as to that decree. Stanley died before the appeals were heard, and the matters were pursed by substituted plaintiffs.
In the first matter, the Superior Court dismissed the appeal as moot because it "concluded that the termination of the conservatorship rendered moot the appeal from the appointment of conservators and found that there was no collateral injury or consequence from which a court could grant relief." Id., 266. The Appellate Court disagreed with this conclusion and reversed the trial court's judgment. As the court explained, "[i]f an actual controversy as to Ann Stanley's claims ceased to exist when the Probate Court terminated the conservatorship, the present appeal would be rendered moot . . . Furthermore, a court will not decide questions when there exists no actual controversy exists or when no actual practical relief can follow from the court's determination . . . Such is not the case here.
"Ann Stanley was not seeking merely to terminate a conservatorship, but also to have the appointment itself set aside. The order . . . which terminated the conservatorship, did not cause to controversy to cease to exist. Furthermore, we view a pending appeal at the Superior Court contesting the reasonableness and the amount of the award of fees as a cause for declaring this matter as not being moot. Neither the termination of the conservatorship nor the pending appeal contesting fees allows for the substitute plaintiffs to contest whether there was a valid appointment of a conservator. The substitute plaintiffs may argue that if no legal basis is found for the appointment, then there also exists no legal basis for an award of fees. To declare this appeal moot would be to disallow the substitute plaintiffs to litigate their claims fully. Because the substitute plaintiffs may be offered practical relief as a result of this appeal, their claims are not moot." Id., 267-68. The court pointed out that "the Probate Court's [second] order itself is quite clear . . . stating that the plaintiff `was no longer in need of a conservator,' which implies that she previously was in need of a conservator." Id., 268 n. 4.
The present appeal is similar to Stanley's Appeal From Probate, inasmuch as Sherman brought the appeal not merely to seek reinstatement of her status a plenary guardian of her daughter, but also to have the suspension of her guardianship itself set aside. Like the subsequent order of the Probate Court in Stanley, which terminated the conservatorship over Stanley, the January 2011 order in this case did not settle the issue of whether the Probate Court's suspension of Sherman's status was valid. Although in Stanley, the Appellate Court referred to the fact that Stanley was not only appealing the appointment of the conservatorship, but also the fees that were awarded to the conservators, the language of the decision clearly states that the appeal was also not moot because the plaintiffs had contested the validity of the appointment itself.
The facts of this case are distinguishable from those at issue in Vredenburgh v. Norwalk Probate Court, supra, 118 Conn.App. 438, in which the Appellate Court found that a probate appeal was rendered moot by a subsequent probate decree. In that case, the plaintiffs appealed from a decree in which the Probate Court appointed the defendant as the temporary conservator of estate of one of the plaintiffs. While the appeal was pending, the Probate Court appointed the defendant as the permanent conservator of that plaintiff's estate. The trial court granted the conservator's motion to dismiss the appeal because his appointment as temporary conservator was superceded by his subsequent appointment as the plaintiff's permanent conservator. As the Appellate Court noted, "[the trial court] observed that `the plaintiff's appeal contests the appointment of the temporary conservator only, asserting error in the appointment process itself. The court then reasoned that because the temporary position ceased to exist . . . there was no actual controversy and no practical relief it could afford the plaintiffs." Id., 439. The Appellate Court affirmed because, "in the appeal from the appointment of a temporary conservator of the [plaintiff's estate], the Superior Court properly concluded that it could not afford the plaintiffs any practical relief following the appointment of a permanent conservator of the estate." Id., 441.
The court distinguished the facts in the case before it from the facts in Stanley, noting, as stated above, that, in that case, the court "determined that a challenge to the appointment of a conservator was not moot following the termination of that position. `[The plaintiff] was not seeking merely to terminate a conservatorship, but also to have the appointment itself set aside . . .' The present case . . . is distinguishable . . . The plaintiffs have not been foreclosed from litigating their claims regarding the appointment of a conservator of the estate. We take judicial notice of the appeal to the Superior Court . . . filed by the plaintiffs [challenging the appointment of the permanent conservator]. That appeal operates to protect sufficiently the rights of the plaintiffs with respect to the issues regarding the conservator of the estate . . . The duties of a conservator of the estate . . . do not distinguish between temporary and permanent conservators . . . We therefore conclude that in the appeal from the appointment of a temporary conservator of the estate of Vredenburgh, the Superior Court properly concluded that it could not afford the plaintiffs any practical relief following the appointment of a permanent conservator of the estate." (Citations omitted.) CT Page 16346 Id., 440-41.
In the same manner, this case is also distinguishable from other cases in which the courts have determined that temporary or interim ruling by an agency, the Superior Court or a probate court became moot when that court issued a permanent ruling on the same issue. See Moraski v. Connecticut Board of Examiners or Embalmers Funeral Directors, 291 Conn. 242, 256-57 967 A.2d 1199 (2009) (plaintiffs' appeal of board decision summarily suspending their license and certificate superceded and rendered moot by board's permanent revocation of their license and certificate); In re Michael A., 47 Conn.App. 105, 108, 703 A.2d 1146 (1997) (respondent mother's appeal of juvenile court decision temporarily removing her as guardian of her minor child subsumed and rendered moot by order permanently removing her as guardian and granting custody and guardianship to father); and Schiavone v. Snyder, 73 Conn.App. 712, 718, 812 A.2d 26 (2002) (plaintiff's appeal of probate court decree approving interim accounting of estate rendered moot by subsequent probate court decree approving final accounting, which "supplants and vitiates the approval of the interim account").
Finally, Sherman's argument that this court may afford her practical relief by voiding the Probate Court decree that removed her as her daughter's guardian raises the issue of what is known as the collateral consequences exception to the doctrine of mootness. As the Supreme Court has explained, it has recognized "that a case does not necessarily become moot by virtue of the fact that . . . due to a change in circumstances, relief from actual injury is unavailable. We have determined that a controversy continues to exist, affording the court jurisdiction, if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief. Although the facts and circumstances of each case raising this issue have differed, a common theme emerges upon review of those cases: whether the litigant demonstrated a basis upon which we could conclude that, under the circumstances, prejudicial collateral consequences are reasonably possible as a result of the alleged impropriety challenged on the appeal." State v. McElveen, 261 Conn. 198, 205, 802 A.2d 74 (2002).
The possible collateral consequences to Sherman are similar to those that the Supreme Court addressed in Williams v. Ragaglia, 261 Conn. 219, 802 A.2d 778 (2002). In that case, the plaintiff filed an administrative appeal from a decision in which the commissioner of the department of children and families (DCF) revoked her special foster care license, pursuant to which she was caring for two children, S and K. Shortly before she filed her appeal, the plaintiff filed a petition to obtain custody of the children. While the appeal was pending before the trial court, DCF decided to support the plaintiff's custody petition, and the trial court resolved the petition in her favor and transferred legal custody of the S and K to her. Therefore, the plaintiff no longer needed the special foster care license. The trial court then granted the commissioner's motion to dismiss the plaintiff's appeal as moot. Id., 224.
"The plaintiff appealed from the trial court's judgment to the Appellate Court. On appeal, the plaintiff contended that her claim was not moot because: (1) she was then suffering and would continue to suffer harm and adverse consequences as a result of the commissioner's decision to revoke her special license; and (2) the trial court could grant practical relief from this harm by overturning the revocation decision . . . The Appellate Court agreed with the plaintiff that her claim was not moot . . . The court noted that, as the biological mother of her own minor children and as the legal guardian of S and K, who had previously been wards of the department, the plaintiff was a member of the class that the department is authorized to investigate . . . The Appellate Court reasoned, therefore, that, if the plaintiff were to come under the department's scrutiny in the future, the department could use the plaintiff's record containing the license revocation against her . . . It further noted that the trial court could provide practical relief to the plaintiff if it overturned the license revocation, thereby giving the plaintiff a clean record with the department . . . Accordingly, the Appellate Court concluded that the plaintiff's appeal was not moot, reversed the judgment of the trial court and remanded the case to that court for an adjudication on the merits of the administrative appeal." (Citations omitted.) Id., 224-25.
In her appeal to the Supreme Court, "the commissioner claims that the Appellate Court improperly determined that the plaintiff's claim was not moot. Specifically, the commissioner contends that, once the plaintiff obtained legal custody of S and K, the special license was no longer required for the children's care. Therefore, relief in the form of reinstatement of the special license is now impractical. The commissioner also claims that the Appellate Court improperly expanded our mootness jurisprudence by allowing a speculative injury that might arise from [the plaintiff's] future dealings with the department to satisfy our justiciability requirements." Id., 225-26.
The Supreme Court noted that it recently "reaffirmed this court's longstanding mootness jurisprudence, namely, that, despite developments during the pendency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that `there is a reasonable possibility that prejudicial collateral consequences will occur.' [ State v. McElveen, supra, 261 Conn. 208]." Williams v. Ragaglia, supra, 261 Conn. 226. Further, the court explained that "[i]n McElveen, we confirmed that the application of the collateral consequences mootness doctrine is not predicated on a showing of the probability of such consequences, but, rather, on a showing of the reasonable possibility of collateral consequences . . . Accordingly, this standard requires the plaintiff to demonstrate more than an abstract, purely speculative injury, but does not require the plaintiff to prove that it is more probable than not that the prejudicial consequences will occur.
"We recognize, as did the Appellate Court, the reasonable possibility that the department could use the plaintiff's license revocation to her detriment in future proceedings . . . The possibility that the plaintiff will have future interaction with the department is not purely speculative . . .
"We further note that the reasonable possibility of adverse use of the plaintiff's record is not limited to proceedings with the department. The department is mandated statutorily to disclose its records to numerous government agencies upon request without obtaining the consent of the person who is the subject of the record . . . There are a variety of ways in which the record pertaining to the plaintiff's license revocation could be used to her detriment . . .
"Finally we note that the dissemination of the plaintiff's record to various government agencies . . . albeit not a direct dissemination to the public, would taint the plaintiffs' reputation. The revocation of a foster care license for cause stigmatizes the plaintiff as having been found to be an unfit caregiver . . . Courts have long recognized the importance of being able to maintain one's own good name . . . In recognition of the importance of one's good name, this court has determined, when addressing collateral consequences, that an action that stains one's reputation is an injury that the court can consider in determining whether it may grant practical relief . . ."We need not decide in the present case whether any one of the adverse effects identified herein would be sufficient on its own to establish a reasonable possibility of collateral consequences from the commissioner's decision to revoke the plaintiff's special license. We conclude, instead, that the totality of these possible consequences is sufficient to permit the trial court to retain jurisdiction over the plaintiff's claim." (Citations omitted.) Id., 227-34.
See also Statewide Grievance Committee v. Whitney, 227 Conn. 829, 837-38 n. 13, 633 A.2d 296 (1993), in which, as the Supreme Court stated, "we concluded that the defendant's appeal from an order of suspension from the practice of law was not rendered moot by the expiration of that suspension prior to oral argument in this court. Relying on several factors — the availability to the public of records pertaining to grievance complaints, the publication of attorney suspensions in the Connecticut Law Journal, and the consideration or prior misconduct of an attorney in subsequent disciplinary proceedings, which reasonably were likely to occur based upon the defendant's prior disciplinary citation — we determined that collateral consequences prejudicial to the defendant's interests existed, allowing the court to retain jurisdiction." State v. McElveen, supra, 261 Conn. 205-06.
The possible collateral consequences that the court identified in Williams also have a reasonable possibility of having an impact on Sherman as a result of the Probate Court decree suspending her status as her daughter's plenary guardian, despite the fact that the court stated that it did not think that Sherman had hit Banks. Specifically, these include the possibility that a third party could use her suspension to her detriment in future proceedings regarding her daughter before the Probate Court; the possibility that the decree could have an impact on her interactions with government agencies regarding services and benefits that her daughter may be entitled to obtain, and the possibility that dissemination of her suspension would stigmatize her has having been found to be unfit to serve as her daughter's guardian. Therefore, although Sherman's status as her daughter's plenary guardian has been restored, her appeal of the Probate Court decree suspending her from that status raises a claim from which this court could grant her practical relief.
CONCLUSION
For the foregoing reasons, Sherman's appeal is not moot. Accordingly, DDS' motion to dismiss is hereby denied.