Opinion
No. W10-CP11-016003-A
May 26, 2011
MEMORANDUM OF DECISION Re Motion to Dismiss Order of Temporary Custody
Iliana M. was born on February 14, 2011. She is now three months old. The child's mother is Tara M-R. The putative father is Edwin A. They shall hereinafter be referred to as the respondents. This is the second motion to dismiss an order of temporary custody and neglect petition. In the first case, this court dismissed an order of temporary custody since the child was born in Worcester, Massachusetts and at the time of the issuance of the order of temporary custody, the child was then in Massachusetts and had never been in Connecticut.
In re Illiana M., Superior Court, Child Protection Session at Willimantic, Docket Number W10-CP11-015977 A (April 12, 2011, Foley, Sr. J.)
Pursuant to the first order of temporary custody, The Department of Children and Families, upon discharge from the Worcester hospital, brought the child to Connecticut and placed the child in foster care. The child has remained in foster care in Connecticut since that time. The parents have had visitation and case management services. The parents have been offered numerous services.
Following the dismissal of the first case, on April 12, 2011, the Department invoked a 96-hour hold and thereafter filed an application for a second order of temporary custody and a neglect petition, the first one having been dismissed without prejudice. The respondents were at a visitation in Willimantic with the child at a DCF arranged visit when the Department notified the respondents of the hold on the child. The respondents were thereafter served with the order of temporary custody and the neglect petition. On April 19, 2011, the respondent's again filed a motion to dismiss the case.
On April 28, 2011, a hearing was conducted on the motion to dismiss. The parties stipulated that the findings made in the earlier case hearing could be used for the purposes of jurisdiction. The social worker testified and the respondent mother testified at the second hearing. As is noted in a review of the exhibits, and records of the respondent mother's prior termination of parental rights case, and her existing case of twin girls, now pending in this court, wherein the court (Graziani, J.) has approved a permanency plan calling for the termination of parental rights to her other children, it is fair to say that the respondent mother has an extremely poor history of parental competence and failure to successfully engage services over much of the past decade. Her testimony in court was not consistent with other known facts and is found to be self-serving, deceitful and not credible.
In re Christian M-R, Superior Court, Child Protection Session at Willimantic, Docket Number W10CP06 015043 A (Foley, Sr. J.) 2008WL 2966845 (Conn.Super. 2008).
In re Liliana M-R, Superior Court for Juvenile Matters, W1015783-A, In re Tatiana M-R, Superior Court for Juvenile Matters, W1015784-A.
The facts found, as they relate to jurisdiction, in the prior proceeding, and accordingly found here are as follows:
1) The minor child, Iliana, was born on February 14, 2011, at the University of Massachusetts Memorial Hospital in Worcester, Massachusetts.
2) While Tara is still married to her lawful husband, Felipe M., she represents that Edwin A., a man who is not her husband, is the putative father of Iliana.
3). This court has previously terminated the parental rights of Tara M-R, to another child, Christian M-R (July 8, 2008). A copy of that judgment has been judicially noticed.
In re Christian M-R, Superior Court, Child Protection Session at Willimantic, Docket Number W10CP06 015043 A (Foley, Sr. J.) 2008WL 2966845 (Conn.Super. 2008).
4) In addition to the child, Christian, whose parental rights were terminated, Tara gave birth in Connecticut to twin girls on October 28, 2009. Those children are not in Tara's care; they are presently committed to the Commissioner of DCF and are now living in foster care in Connecticut. A permanency plan for the twins calls for termination of Tara's parental rights and adoption.
5) Tara married her present husband, Felipe, in Willimantic in 2000. As far as DCF knows, Tara has lived her whole life in Connecticut. She was born in New London, CT, and went to high school in Windham, CT. It is not disputed that Tara has lived frequently with her mother at 75 Chapman Street, Willimantic. DCF has been actively involved with Tara for, at least, the past seven years and her residence has always been in the vicinity of Willimantic.
6) Tara lists her mailing address with this court as 75 Chapman Street, Willimantic CT.
7) The Petitioner introduced three police reports dated, August 29, 2010, January 12, 2011 and February 26, 2011, all of which involved Tara. All of the incident reports list her address as 75 Chapman Street, Willimantic CT.
8) A Willimantic Police Incident report dated February 26, 2011, lists Edwin Antonio A., as a suspect in that incident with an address of 455 Ash St. Willimantic, Ct.
9) Forty-six-year-old Edwin A. filed a financial affidavit with this court on February 22, 2011, seeking appointment of counsel. He listed his address as 455 Ash Street, Willimantic.
10) On February 3, 2011, the DCF social worker was sufficiently concerned about Tara's welfare before the child was born that she contacted the Willimantic police to do a well-person check on Tara at 75 Chapman Street, Willimantic. Shortly thereafter, Tara called the social worker and wanted to know why the police were "at her house."
11) When the child was born in Massachusetts, the hospital workers alerted the Massachusetts DCF office of their concerns. (Petitioner's Exhibit A.) Tara told the DCF worker that she had been staying in North Cambridge, Massachusetts for two weeks, but could not give the last name of the people she had stayed with. She also told the worker that she was planning on residing in Southbridge, Massachusetts but did not have an address in that community.
12) Both Edward and Tara provided their Connecticut addresses to the Massachusetts hospital.
13) While the Massachusetts agency was investigating the case, they learned that the Connecticut child protection agency (DCF) was involved and that Tara had three children that had previously been removed from her care. While the Massachusetts agency seemed ready to assist the Connecticut DCF, they reported that they were unable to take custody for another state. Tara ultimately told the Massachusetts authorities that her lawyer told her to come to Massachusetts so that Connecticut will not be legally able to remove the child from her custody.
It is surprising that the various state child protection agencies do not have a protocol to address this situation, which cannot be all that uncommon.
14) Thereafter the Connecticut DCF personnel sought and obtained an order of temporary custody from the Connecticut court. The social workers went to Massachusetts and removed the child from the hospital. The child is now in foster care in Connecticut.
15) This court finds that Connecticut is the home state and residence of Tara and Edward and that their representations to the Massachusetts authorities were not truthful with respect to their residence and their intentions to live in Massachusetts.
16) The court specifically finds that at the time of the institution of these proceedings, Tara and Edwin were residents of Willimantic, CT.
In the prior decision the court incorrectly referred to Edwin as Edward on two occasions.
In the presently pending case, service of process was made by abode service at 75 Chapman Street for the respondent mother and at 455 Ash street for the putative respondent father. Both parties appeared for the motion to dismiss and were represented by counsel. The child was in Connecticut at the time the parents were served.
In their joint memorandum, dated May 17, 2011, the respondents clearly view this case as one of diversity of citizenship. They argue that ". . . the child was born in the Commonwealth of Massachusetts and was and remains a citizen of the Commonwealth . . . the Department's actions have denied the parents their right to due process within the Commonwealth of Massachusetts and is an egregious denial of the equal protection of the law of the Commonwealth in that a citizen of the Commonwealth has been improperly and illegally removed from the Commonwealth without due process of law, that citizen has had her liberty purposely and prejudicially removed and she has been denied, as well as her parents, of their property rights to the love and affection of their affiliation with each other without due process of law." The respondents ask that this court order the Petitioner to return the child to Massachusetts and allow the Child Protection agency and courts there to take whatever action they deem appropriate. Curiously, they do not seek a return of the child to their care.
The court is baffled by this proposition. They ask this court apparently, to have the Department, bring the child to the child protection agency in Massachusetts (the same agency that declined to act at birth), to then have them institute temporary emergency proceedings within the Commonwealth of Massachusetts in which the likely outcome would be that the Massachusetts court would find that Connecticut is the most convenient forum and thereafter send the case back to Connecticut where it is now pending.
In support of this argument the respondents argue that under the Uniform Child Custody Jurisdiction Enforcement Act, (UCCJEA) General Statutes 46b-115 et seq., that Massachusetts is the home state. This court disagrees that Massachusetts is the home state within the meaning of the UCCJEA. It is clear that Massachusetts could have exercised emergency jurisdiction but didn't. The General Laws of Massachusetts have an act concerning jurisdiction which is similar, but not identical to the Uniform Child Custody Jurisdiction and Enforcement Act, see Umina v. Mabica, 72 Mass.App.Ct. 351, 354-56 (1986). However, G.L.c. 209B, § 2(3) of the Massachusetts Child Custody Jurisdiction Act, is substantially the same as the Connecticut temporary emergency jurisdiction of the child that may be granted pursuant to General Statutes § 46b-115n(a)(2). That statute provides in relevant part: (a) A court of this state has temporary emergency jurisdiction if the child is present in this state and (1) the child has been abandoned, or (2) it is necessary in an emergency to protect the child because the child . . . has been, or is under a threat of being, abused or mistreated . . .
"This law confers on courts in states that do not have jurisdiction to enter or modify permanent custody orders the authority to enter temporary emergency custody orders to protect children at risk of abuse or mistreatment while the parties and courts resolve the emergency." Scott v. Somers, Superior Court, judicial district of New Haven, Docket No. FA 044001981 (September 22, 2006, Frazzini, J.).
Massachusetts could have assumed temporary emergency jurisdiction and thereafter, if it determined that Connecticut was the more convenient forum, could have declined to exercise further jurisdiction. In Connecticut, § 46b-115q(c) provides that "[i]f a court of this state determines that it is an inconvenient forum, and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper."
While it is not clear that the Uniform Child Custody Jurisdiction and Enforcement Act ever actually contemplated juvenile court proceedings, it is clear to this court that a mechanism does exist under the act for the orderly assumption and transfer of jurisdiction to an appropriate and convenient forum. But that did not occur.
If there is a home state for this child, and it is not clear that the child even had a home state under the UCCJEA, see In re Leona A.D., Superior Court for Juvenile Matters, 12th District at Hartford, Docket Number H-12 CP10 013578 A (March 16, 2011, Frazzini, J.) [ 51 CLR. 565], this court finds that Connecticut is the home state. There are not many references in Connecticut law to this issue of children born to Connecticut residents in another state, but the only reference which this court has found which even remotely provides guidance, is a statute regarding venue. This statute is clearly instructive of the legislative intent on matters such as this. That expression is contained in Sec. 46b-142(a):
(a) The Chief Court Administrator, in consultation with the judges of the Superior Court, shall establish districts for the purpose of establishing venue in juvenile matters. All petitions concerning delinquent children shall be heard within the district where the delinquency is alleged to have occurred or where the child resides, in the discretion of the court. All other petitions shall be heard within the district where the child or youth resided at the time of the filing of the petition, but for the purposes of this section any child or youth born in any hospital or institution where the mother is confined at the time of birth shall be deemed to have residence in the district wherein such child's or youth's mother was living at the time of her admission to such hospital or institution. (Emphasis added.)
The application of this expression of legislative intent, and the application of common sense, would support the notion that Connecticut is the home state of the child. Here the court has found that Willimantic was the residence of the respondents at the time of the birth of the child. The respondent's have never argued that Connecticut does not have jurisdiction over them. It is only that at the time the initial order of temporary custody was ordered the child was not then in Connecticut. The child is now in Connecticut and the jurisdictional requirements of Sec. 46b-121(a) have been met.
The respondents then argue that the Department acts with unclean hands and seek equitable assistance. It is axiomatic of the law of equity, that to seek equity one must come in to court with clean hands. This court has found that the respondents were not truthful with the Massachusetts authorities, Tara ultimately told the Massachusetts authorities that her lawyer told her to come to Massachusetts so that Connecticut will not be legally able to remove the child from her custody. Thus they were acting to prevent the Connecticut agency from protecting the child. The respondents have acted with unclean hands as that term is understood for equitable considerations. To seek equity, one must do equity, and they have not.
For the foregoing reasons, the motion to dismiss the petition is denied.