Opinion
No. FA00-0630654
October 2, 2000
MEMORANDUM OF DECISION
The Commissioner of Social Services commenced this paternity action pursuant to General Statutes § 46b-162. The named plaintiff Janis Young is the mother of three minor children: Quinn Jordan Red, born January 4, 1992; Javan Quinten Red, born May 4, 1994; and Alleah Chanelle Red, born December 10, 1995. The complaint alleges that the defendant is the father of the three minor children and that the State has an interest because the children are "receiving child support services." The petition includes a "verified statement of facts" signed by one Kimberly Williams, an investigator of the Department of Social Services. The defendant has moved to dismiss the complaint claiming that this court lacks subject matter jurisdiction. The defendant's amended motion is accompanied by a memorandum of law. The State filed an "objection" which sufficiently sets forth its legal argument so as to comply with Practice Book § 25-13 which requires that an "adverse party who objects" to the motion to dismiss to file a memorandum of law and where appropriate, supporting affidavits.
Practice Book § 25-13 provides
"(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
(b) If an adverse party objects to this motion he or she shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record."
"A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court." Park City Hospital v. Commission on Hospitals Health Care, 210 Conn. 697, 702, 556 A.2d 602 (1989); Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).
"A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record. Bradley's Appeal from Probate, 19 Conn. App. 456, 461-62, 563 A.2d 1358 (1989); see Practice Book § 142 [now § 10-30]. A ruling on a motion to dismiss is neither a ruling on the merits of the action; Amore v. Frankel, 29 Conn. App. 565, 570-71, 616 A.2d 1152 (1992), [rev'd on other ground, 228 Conn. 358, 636 A.2d 786 (1994)]; nor a test of whether the complaint states a cause of action. Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993); see Practice Book § 143 [now § 10-31]. Motions to dismiss are granted solely on jurisdictional grounds. Caltabiano v. Phillips, 23 Conn. App. 258, 265, 580 A.2d 67 (1990); see Practice Book § 143 [now § 10-31] (Internal quotation marks omitted); Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 306-307, 635 A.2d 843 (1993)." Villager Pond, Inc. v. Town of Darien, 54 Conn. App. 178, 182, 734 A.2d 1031 (1999); see also Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991)
"In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990)." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998); see Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1998); Bretemps v. Strona, 19 Conn.L.Rptr. 9, 1997 Ct. Sup. 210-J, 210-P (1997).
The defendant first argues that the petition should be dismissed because the petition was not commenced by "verified petition of the mother or expectant mother" as required by General Statutes § 46b-160(a). This petition was brought by the Commissioner of Social Services. The verification (verified statement of facts) was signed by the investigator rather than the mother. There is no evidence or even an allegation that the investigator's statements were from first-hand knowledge but merely on "best information and belief'.
The State responds that the action is not based on General Statutes § 46b-160 but rather relies on General Statutes § 46b-162. That section not only authorizes the State to "take up and pursue any petition commenced by the mother" but also to "institute such proceedings against the person accused of begetting the child." Furthermore, the "petition may be made by the Commissioner of Social Services or the town welfare administrator on information or belief." In Bretemps v. Strona, 19 Conn.L.Rptr. 9, 1997 Ct. Sup. 210-J (1997) the Superior Court affirmed the denial of a motion to dismiss by the Family Support Magistrate based in part on the same grounds as the present motion. As to the authority of the State to commence the action and the language required in its petition, the court held: "[General Statutes] § 46b-162 must be acknowledged as a mechanism for enabling the state . . . to present the court with its claims that the child's father should make reasonable and responsible contributions to that child's support. The text of the statute does not require the state to affirmatively plead that the child's mother has neglected to bring a paternity petition, or that she has instituted such legal action but has failed to prosecute the matter to final judgment. Therefore, the court cannot conclude that failure to plead in strict accordance with the language of § 46b-162 renders the paternity petition fatally flawed, entitling the defendant to a dismissal of this action." Bretemps v. Strona, 19 Conn.L.Rptr. 9, 1997 Ct. Sup. 210-J, 210-P, 210-AA (1997).
General Statutes § 46b-162 provides:
"The state or any town interested in the support of a child born out of wedlock may, if the mother neglects to bring such petition, institute such proceedings against the person accused of begetting the child, and may take up and pursue any petition commenced by the mother for the maintenance of the child, if she fails to prosecute to final judgment. Such petition may be made by the Commissioner of Social Services or the town welfare administrator on information or belief. The mother of the child may be subpoenaed for testimony on the hearing of the petition."
That court also considered claims that the verified statement was deficient. The court first engaged in a discussion of whether the supposed approval of the form by the office of the chief court administrator sanctified the content. This court does not find that analysis useful. What is significant was that court's conclusion that neither § 46b-160 nor § 46b-162 specifies any particular allegations that must be made in the verified statement nor that only the mother of the child may execute such statement. Furthermore, the court held that a verified statement may be submitted by an authorized representative of the Commissioner of Social Services based on her best information and belief. Bretemps v. Strona, 19 Conn.L.Rptr. 9, 1997 Ct. Sup. 210-J, 210-DD-EE (1997). While this does not establish the veracity or reliability of such statement, it is sufficient to overcome any jurisdictional attack.
Next, the defendant complains that the petition does not adequately identify the mother or the children. These deficiencies do not go to the jurisdiction and would properly be addressed by a request to revise.
The defendant also faults the papers served because of the failure to serve on him an answer form and application for appointment of counsel, as required by General Statutes § 46b-160(d) and notice of right to counsel, notice of the right to a genetic test, notice that a default judgment may enter if he fails to respond to the petition and notice that he would be obliged to financially support the child if found to be the father, all as provided in General Statutes § 46b-160(e). The State responds that the requirements listed apply only to a defendant residing outside of the State of Connecticut.
Public Act No. 93-329 added subsections (c) to (g) to the statute which have been subsequently further amended. The amendment was concerned with jurisdiction over nonresident putative fathers. All of these subsections amplify General Statutes § 46b-160(b) which again relates only to putative fathers residing out of state or absent from the state. These requirements to not apply to the defendant in this case, who is alleged to be a resident of the Town of Bloomfield at the address where abode service was made.
General Statutes § 46b-160(b) through (g) provide:
"(b) If the putative father resides out of or is absent from the state, notice required for the exercise of jurisdiction over such putative father shall be actual notice, and shall be in the manner prescribed for personal service of process by the law of the place in which service is made.
"(c) In any proceeding to establish paternity, the court or family support magistrate may exercise personal jurisdiction over a nonresident putative father if the court or magistrate finds that the putative father was personally served in this state or that the putative father resided in this state and while residing in this state (1) paid prenatal expenses for the mother and support for the child, (2) resided with the child and held himself out as the father of the child, or (3) paid support for the child and held himself out as the father of the child, provided the nonresident putative father has received actual notice of the pending petition for paternity pursuant to subsection (c) of this section.
"(d) The petition, when served pursuant to subsection Cc) of this section, shall be accompanied by an answer form, a notice to the putative father and an application for appointment of counsel, written in dear and simple language designed for use by pro se defendants.
"(e)(1) The answer form shall require the putative father to indicate whether he admits that he is the father, denies that he is the father or does not know whether he is the father of the child. Any response to the answer form shall not be deemed to waive any jurisdictional defense.
"(2) The notice to the putative father shall inform him that (A) he has a right to be represented by an attorney, and if he is indigent, the court will appoint an attorney for him, (B) if he is found to be the father, he will be required to financially support the child until the child attains the age of eighteen years, (C) if he does not admit he is the father, the court or family support magistrate may order a genetic test to determine paternity and that the cost of such test shall be paid by the state in IV-D support cases, and in non-IV-D cases shall be paid by the petitioner, except that if he is subsequently adjudicated to be the father of the child, he shall be liable to the state or the petitioner, as the case may be, for the amount of such cost and (D) if he fails to return the answer form or fails to appear for a scheduled genetic test without good cause, a default judgment shall be entered.
"(3) The application for appointment of counsel shall include a financial affidavit.
"(f) If the court or family support magistrate may exercise personal jurisdiction over the nonresident putative father pursuant to subsection (d) of this section and the answer form is returned and the putative father does not admit paternity, the court shall order the mother, the child and the putative father to submit to genetic tests. Such order shall be served upon the putative father in the same manner as provided in subsection (c) of this section. The genetic test of the putative father, unless he requests otherwise, shall be made in the state where the putative father resides at a location convenient to him. The costs of such test shall be paid by the state in IV-D support cases, and in non-IV-D cases shall be paid by the petitioner, except that if the putative father is subsequently adjudicated the father of the child, he shall be liable to the state or the petitioner, as the case may be, for the amount of the costs.
"(g) The court or family support magistrate shall enter a default judgment against a nonresident putative father if such putative father (1) fails to answer or otherwise respond to the petition, or (2) fails to appear for a scheduled genetic test without good cause, provided a default judgment shall not be entered against a nonresident putative father unless (A) there is evidence that the nonresident putative father has received actual notice of the petition pursuant to subsection (c) of this section and (B) there is verification that the process served upon the putative father included the answer form, notice to the defendant and an application for appointment of counsel required by subsection (e) of this section. Upon entry of a default judgment, a copy of the judgment and a form for a motion to reopen shall be served upon the father in the same manner as provided in subsection (c) of this section."
Accordingly, the motion to dismiss is denied.
The court takes judicial notice that an action entitled Red v. Young was filed in the Superior Court in this judicial district, docket number FA00-0724764. That action was commenced by the present defendant mere weeks after the State commenced the present action. The complaint in that case seeks an adjudication of parentage and custody of the same three children. Although there is no cause to dismiss the matter before the court, it is observed that since both matters implicate the same parties and the same issues are or can be at issue, judicial economy would suggest that either the two matters be consolidated under the same docket number or that one or the other case be withdrawn or nonsuited. This court is aware that the alternate case is imminently due for hearing before the Superior Court and suggests that the parties and/or Superior Court take appropriate action such that one and only one file survives.
BY THE COURT
Harris T. LIFSHITZ Family Support Magistrate