Opinion
No. L15-CP07-008376-A
July 8, 2009
MEMORANDUM OF DECISION
On September 28, 2007, Daniel M. ("Daniel") was born. On October 1, 2007, pursuant to a ninety-six hour hold, he was removed from his biological parents by the commissioner of children and families ("DCF"). On February 13, 2008, Daniel was committed to the care, custody and guardianship of DCF. See General Statutes § 46b-129(j).
On or about May 7, 2008, the maternal grandmother, who on February 13, 2008, had previously been permitted to intervene for dispositional purposes only, filed a motion to transfer guardianship of Daniel to her. Such maternal grandmother alleged that both parents were incarcerated. The maternal grandmother alleged that she was qualified to serve as guardian of Daniel.
Although not alleged by the maternal grandmother, any such motion to transfer guardianship of a child committed by the court to the care, custody and guardianship of DCF is treated as a motion to revoke such commitment and, if cause for such commitment no longer exists, then the court considers whether such revocation is in the best interest of the child. See General Statutes § 46b-129(m):
The commissioner, a parent or the child's attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commitment of such child or youth. No such motion shall be filed more often than once every six months.
See also Practice Book § 35a-14A:
A party may file a motion seeking revocation of commitment. The judicial authority may revoke commitment if a cause for commitment no longer exists and it is in the best interests of the child or youth. Whether to revoke the commitment is a dispositional question, based on the prior adjudication, and the judicial authority shall determine whether to revoke the commitment upon a fair preponderance of the evidence. The party seeking revocation of commitment has the burden of proof that no cause for commitment exists. If the burden is met, the party opposing the revocation has the burden of proof that revocation would not be in the best interests of the child. If a motion for revocation is denied, a new motion shall not be filed by the movant until at least six months have elapsed from the date of the filing of the prior motion unless waived by the judicial authority.
If the intervening maternal grandmother's motion for transfer of guardianship were not subject to the requirements of the foregoing statute and Practice Book section, then such grandmother would have an advantage over the parents, the child and DCF in that she would not have to prove that there was no current cause for the continuation of Daniel's commitment to DCF.
If the court determines that no cause for commitment currently exists and that revocation of such commitment is in the best interest of the child, it then determines whether there is someone suitable and worthy to assume or re-assume guardianship. See General Statutes § 46b-129(j):
Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court, or the court may vest such child's or youth's care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility by the court . . .
Prior to October 1, 1998, General Statutes § 46b-129(g) (now General Statutes § 46b-129(m) provided as follows:
CT Page 11583
Any court by which a child or youth has been committed pursuant to the provisions of this section may, upon the application of the attorney who represented such child in a prior or pending commitment proceeding, an attorney appointed by the Superior Court on its own motion or an attorney retained by such child after attaining the age of fourteen, a parent, including any person who acknowledges before said court paternity of a child or youth born out of wedlock, or other relative of such child or youth, the selectman or any original petitioner, or a licensed child-caring agency or institution approved by the commissioner, or said commissioner, and while such child or youth is under the guardianship of said commissioner, upon hearing, after reasonable notice to said commissioner, and, if said commissioner made the application, after reasonable notice to such parent, relative, original petitioner, selectman or child-caring agency or institution, upon finding that cause for commitment no longer exists, revoke such commitment, and thereupon such guardianship and all control of said commissioner over such child or youth shall terminate. The court may further revoke the commitment of any child or youth upon application by the commissioner or by the child or youth concerned and after reasonable notice to the parties affected upon a finding that such revocation will be for the best interest and welfare of such child or youth. No hearing shall be held for such reopening and termination of commitment or transfer of commitment more often than once in six months, except upon the application of said commissioner.
Public Act 98-241 § 5. (Emphasis supplied.)
In such Public Act, General Statutes § 46b-129(g) was replaced by General Statutes § 46b-129(m) as follows:
THE COMMISSIONER, A PARENT OR THE CHILD'S ATTORNEY MAY FILE A MOTION TO REVOKE A COMMITMENT, AND, UPON FINDING THAT CAUSE FOR COMMITMENT NO LONGER EXISTS, AND THAT SUCH REVOCATION IS IN THE BEST INTEREST AND WELFARE OF SUCH CHILD OR YOUTH, THE COURT MAY REVOKE THE COMMITMENT OF ANY CHILD OR YOUTH. NO SUCH MOTION SHALL BE FILED MORE OFTEN THAN ONCE EVERY SIX MONTHS.
Currently such statute is as follows:
The commissioner, a parent or the child's attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commitment of such child or youth. No such motion shall be filed more often than once every six months.
Although the legislature's reasons for restricting those who may file a motion to revoke a commitment were not delineated in the legislative history of Public Act 98-241, the effect of Public Act 98-241, § 5 was to exclude, inter alia, a child's relatives other than his or her parents from filing such a motion.
In In re Nasia B., 98 Conn.App. 319, 908 A.2d 1090 (2006), the Appellate Court interpreted and applied General Statutes § 46b-129(m). Citing to General Statutes § 1-2z, it found that the terms of such statute were plain and unambiguous, and that "extratextual evidence of the meaning of the statute" was not required:
"The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z.
Id. at 328, 330.
In Nasia B., the trial court (Crawford, J.) had sua sponte opened the neglect judgment and revoked Nasia's commitment to the care, custody and guardianship of DCF. The Appellate Court held that there was no authority in General Statutes § 46b-129(m) for the trial court's sua sponte action:
In this case, it is undisputed that neither the petitioner, the parents nor the child's counsel filed a motion to revoke the child's commitment . . .
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On the basis of our review of the record and the plain and unambiguous terms of the statute, we conclude that the court improperly opened the judgment of commitment and revoked the child's commitment to the petitioner. The court revoked the child's commitment on the basis of the evidence the petitioner presented at the trial on the consolidated petition to terminate parental rights. No evidence was presented as to whether the cause for the child's commitment no longer existed. Although a trial court has jurisdiction to open a judgment of commitment under § 46b-129(m) and to revoke the commitment, it may do so only when it adheres to the mandates of the statute . . . When the court sua sponte revoked the child's commitment to the petitioner, it acted outside the scope of its authority pursuant to § 46b-129(m) and (o), which are intended to provide for the orderly administration of justice, protect the due process rights of the petitioner, the respondents and the foster mother, and to protect the best interest of the child. We conclude, therefore, that the court improperly revoked, sua sponte, the child's commitment to the petitioner and reverse the judgment of the trial court.
Id. at 329-30.
Even if a court has jurisdiction over the subject matter of a motion, the exercise of its authority must be consonant with the parameters of any applicable statute limiting that authority. See Amodio v. Amodio, 247 Conn. 724, 728, 731, 724 A.2d 1084 (1999) (distinguishing the trial court's subject matter jurisdiction from exercise of its authority pursuant to a statute). See also In re Michaela Lee R., 253 Conn. 570, 596, 756 A.2d 214 (2000) ("The commissioner's jurisdiction over the subject area of amendments to birth certificates is not unlimited, however, and must be exercised within the parameters of the relevant statutory provisions"); In re Thomas J., 77 Conn.App. 1, 8, 822 A.2d 3 (2003); and In re John G., 56 Conn.App. 12, 14 n. 2, 740 A.2d 496 (1999).
DCF and the father have argued that although Daniel was and is in fact committed to the care, custody and guardianship of DCF, the court need not apply to the intervening maternal grandmother's motion for transfer of guardianship General Statutes § 46b-129(m) and Practice Book § 35a-14A. Both parties have referred the court to Practice Book §§ 35a-16 and 35a-20(b). In support of its position that the maternal grandmother is not constrained by the provisions, requirements and limitations of General Statutes § 46b-129(m) and of Practice Book § 35a-14A, DCF has also cited General Statutes § 46b-129(j), which provides in relevant part:
Section 35a-16, entitled "Modifications," provides:
Motions to modify dispositions are dispositional in nature based on the prior adjudication, and the judicial authority shall determine whether a modification is in the best interests of the child or youth upon a fair preponderance of the evidence. Unless filed by the commissioner of the department of children and families, any modification motion to return a child or youth to the custody of the parent without protective supervision shall be treated as a motion for revocation of commitment.
Although not spelled out with a specific statutory or Practice Book citation, such last sentence clearly refers the parties and the court to General Statutes § 46b-129(m) and Practice Book § 35a-14A, and the proposed motion by and transfer or return to a maternal grandparent instead of a parent should not alter the treatment of such motion as a motion for revocation of commitment.
Practice Book § 35a-20, entitled "Motions for Reinstatement of Parent as Guardian or Modification of Guardianship Post-Disposition," clarifies that the Superior Court for Juvenile Matters ("SCJM") may hear and decide subsequent guardianship matters after its initial orders transferring such guardianship to a natural person. Subsection (b) allows a "parent, legal guardian or other interested party" to seek a modification or transfer of guardianship of a child from a person to whom the SCJM has previously transferred guardianship. That has not occurred in this case. Practice Book § 35a-20 provides as follows:
(a) Whenever a parent or legal guardian whose guardianship rights to a child or youth were removed and transferred to another person by the superior court for juvenile matters seeks reinstatement as that child's or youth's guardian, or modification of guardianship post-disposition, the parent or legal guardian may file a motion with the court that ordered the transfer of guardianship.
(b) A parent, legal guardian or other interested party seeking guardianship of the child or youth after guardianship rights to that child or youth were transferred to another person by the superior court for juvenile matters may file a motion with the court that ordered the transfer of guardianship.
(c) The clerk shall assign such motion a hearing date and issue a summons to the current guardian and the nonmoving parent or parents. The moving party shall cause a copy of such motion and summons to be served on the child's or youth's current legal guardian(s) and the nonmoving parent or parents.
(d) Before acting on such motion, the judicial authority shall determine if the court still has custody jurisdiction and shall request, if necessary, that the commissioner of the department of children and families conduct an investigation and submit written findings and recommendations before rendering a decision.
Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court . . . The commissioner shall be the guardian of such child or youth for the duration of the commitment, provided the child or youth has not reached the age of eighteen years or . . . until another guardian has been legally appointed . . .
To avoid the applicability of General Statutes § 46b-129(m) and Practice Book § 35a-14A to the intervening maternal grandmother, DCF and the father seek, inter alia, to have the court ignore or not apply their provisions including the language of General Statutes § 46b-129(m) delineating who may file such a motion. This approach violates "cardinal principles of statutory interpretation:"
Interpreting a statute to render some of its language superfluous violates cardinal principles of statutory interpretation. "It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions." (Internal quotation marks omitted.) State v. Gibbs, 254 Conn. 578, 602, 758 A.2d 327 (2000); see also Vibert v. Board of Education, 260 Conn. 167, 176, 793 A.2d 1076 (2002) ("in interpreting a statute, we do not interpret some clauses of a statute in a manner that nullifies other clauses but, rather, read the statute as a whole in order to reconcile all of its parts"). "[I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Internal quotation marks omitted.) Small v. Going Forward, Inc., 281 Conn. 417, 424, 915 A.2d 298 (2007). Because "[e]very word and phrase [of a statute] is presumed to have meaning;" Vibert v. Board of Education, supra, 176; § 29-356(3) must be construed, "if possible, such that no clause, sentence or word shall be superfluous, void or insignificant." (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003).
While General Statutes § 46b-129(m) delineates "[t]he commissioner, a parent or the child's attorney" as those persons who "may file a motion to revoke a commitment . . ." Practice Book § 35a-14A provides that "[a] party may file a motion seeking revocation of commitment . . ." In light of the limiting language in General Statutes § 46b-129(m), this court interprets the "[a] party" language in Practice Book § 35a-14A to refer only to "[t]he commissioner, a parent or the child's attorney . . ." See, e. g., Bittle v. Commissioner of Social Services, 249 Conn. 503, 516, 734 A.2d 551 (1999) (harmonizing Practice Book procedures with intent of legislature in analogous statutes).
Because the intervening maternal grandmother is not within the persons permitted in General Statutes § 46b-129(m) to file a motion for revocation of commitment, her motion is improperly filed and the court hereby declines to hear such motion.