Opinion
No. MO8-CP03-009247
December 12, 2005
MEMORANDUM OF DECISION
INTRODUCTION:
On October 28, 2005, the respondent mother filed a motion to dismiss for the following reason: "Respondent mother respectfully moves that the Petition to Terminate Parental Rights ["second TPR petition"] be dismissed on the grounds that civil process was never commenced in this matter. Conn. Gen. Stat., Sec. 52-45a."
In support of her motion to dismiss, the mother alleged the following:
"[The] State Marshal['s] . . . Return of Service indicates that abode service was made upon the Respondent Father . . . on 4/19/05 . . . However, [that] Apt. . . . is part of an elderly housing facility and was not then the usual place of abode for the Respondent Father. On 5/6/05 [the date of the initial advisement of rights and plea], just a brief time after the abode service, Respondent Father gave the following as his [current] address to a DCF worker [an address in another county] . . .
"Abode, service is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such service shall be dismissed." Hibner v. Breuning, 78 Conn.App. 456, 463 (2003).
"Middlesex County is the `precinct' for service of process for [the] State Marshal . . . [A]fter the date of the ineffective abode service, on 4/21/05, [the] Marshal . . . made "in hand" service on the Respondent Mother . . . in New London County."
The respondent mother then cited Connecticut General Statutes ("CGS") section 52-56(b), relating to commencement of service in one county and completion of service in another county.
The respondent mother asserted: "If, as Respondent Mother maintains, there was no effective service by [the] Marshal . . . in his precinct . . . [the] Marshal could not then "complete the service" when he made in hand service upon the Respondent Mother . . ."
The respondent mother sought the dismissal of the petition "for lack of personal jurisdiction."
On November 9, 2005, the commissioner of the department of children and families ("DCF") objected to the mother's motion to dismiss as follows:
(1) because the respondent mother failed to attach a memorandum of law, the motion failed to comply with Connecticut Practice Book section 34a-10: "That requirement to attach a memorandum of law is mandatory . . .";
(2) the respondent mother failed to allege how she "was harmed or prejudiced by any such alleged issues regarding service of process . . .";
(3) on May 6, 2005, the respondent mother appeared in court for her advisement and plea. She was represented by counsel. The court found that she was served by in hand service. The court also found that the respondent father was served timely by abode service and publication; and
(4) having not been raised until approximately six months after her plea, the respondent mother's argument regarding service was untimely.
On November 9, 2005, when each party appeared through counsel, the court deferred any ruling on the DCF objection "to allow each respondent to demonstrate that this court does not have subject matter jurisdiction over the pending TPR case, as argued by each respondent on November 9, 2005."
The respondent mother filed a revised motion to dismiss for "lack of jurisdiction and late return of process . . .", and a memorandum of law.
On December 7, 2005, DCF filed an objection to the revised motion to dismiss, and a memorandum of law. In such objection, DCF noted that, on November 9, the issue raised by each of the respondents was subject matter jurisdiction, and that the substance of the mother's revised motion instead was "`lack of [personal] jurisdiction and late return of process . . .': The Respondent [mother] again contends that . . . abode service on the Respondent father was not at his `usual address,' thus rendering father's service and her subsequent service ineffective. The Respondent mother further maintains that `at the time of delivery of process to her, the civil action, Termination of Parental Rights, did not begin since there was no service upon her.'" (Emphasis in original.)
DCF additionally asserted: "On May 6, 2005, the Respondent-mother appeared in court for the TPR plea. Respondent mother was represented by counsel. The court heard brief testimony from the DCF social worker . . . regarding father's last known address . . . After considering the testimony, the court found that the Respondent father was `served abode and by publication upon father,' both of which were `confirmed and timely.' The court held that the Respondent mother was served in hand . . . appeared in court for the TPR plea and secured counsel . . ."
The father, through counsel, determined not to press further any claim of lack of subject matter jurisdiction. The father has not filed any claim of lack of personal jurisdiction over him.
Because of facts contained in the court file, of which the court can take judicial notice, and no material issues of fact requiring a hearing, the court is able to rule on the motion based on the papers. The court denies the mother's untimely motion to dismiss, as revised.
FACTS:
In connection with the respondent mother's motion to dismiss and revised motion to dismiss, the court takes judicial notice of the following undisputed facts that appear in the court file.
On February 21, 2003, DCF filed a petition for neglect based on the "conditions injurious" provision set forth in CGS section 46b-120(9)(C). On April 24, 2003, the mother appeared and was advised of her rights. Counsel was appointed for the mother. On July 3, 2003, the mother entered a nolo contendere plea to the conditions injurious allegation. Tatyana L. ("Tatyana") was adjudicated neglected, but remained with her mother under orders of protective supervision through December 23, 2003. On that date, Tatyana was committed to the care, custody and guardianship of DCF, and Tatyana was placed by DCF with her maternal grandmother.
On February 14, 2005, DCF filed its first petition for termination of the mother's and the father's parental rights. On April 8, 2005, it withdrew that petition. On April 11, 2005, DCF filed its second petition for the termination of the mother's and the father's paternal rights. On April 21, 2005, the respondent mother was served in hand while she was at York Correctional Institution at Niantic, Connecticut. The initial advisement and plea date for the termination petition was May 6, 2005. On May 6, 2005, the mother and her counsel (not current counsel) appeared in the superior court for juvenile matters at Middletown. In the presence of such former counsel, the mother did not contest service, was advised of her rights and entered her plea, a pro forma denial. The mother agreed that the commitment of Tatyana should be maintained.
On May 6, 2005, the following also took place:
Q . . . you are the assigned social worker to the case . . .
A. Yes, I am.
Q. Okay. And did you have occasion recently to speak with the respondent father . . . regarding this case?
A. Yes, I did.
Q. Did you inform him that the Department had filed a termination of parental rights petition?
A. Yes.
Q. Did you inform him that, did you inform him of this through the telephone or in a face to face conversation?
A. I spoke to him in person.
Q. Okay. And was it here in the . . . area when you spoke to him?
A. Yes, it was at his residence when he was living [at the same residence where abode service was made].
Q . . . And did you inform him that in conjunction with this termination of parental rights petition, the Court would be holding a hearing regarding the petition?
A. Yes.
Q. Did you inform him that it would be imperative or important that he be present for this hearing?
A. Yes.
Q. Did you inform him that he would have the right to counsel?
A. Yes.
Q . . . And did you emphasize this on more than one occasion during the course of the conversation?
A. Yes.
A . . . I went to the residence I saw [the mother and the father] and spoke to them about the importance of attending court.
Q. What date did you tell him?
A. The date of the last court hearing.
Q. Okay. Not this court hearing.
A. Right.
Q. And did [the father] confirm his address with you?
A. He told me that that's where he was staying . . . which is where he was sleeping and present when I met with him.
Q. Okay.
THE COURT: Which is where one of the places of [where] service was[,] right?
THE WITNESS: Yes.
Transcript of May 2005, hearing, pages 7-11.
The court then stated: ". . . So I will enter, based on the testimony of [the social worker] and the publication and the . . . actual service[,] I'll enter a default judgment against [the father]." Transcript, 14.
On September 6, 2005, the mother's current counsel appeared.
On October 24, 2005, the father's counsel was appointed. On November 9, 2005, the father was advised of his rights, and he entered a pro forma denial of the allegations of the petition.
MOTION TO DISMISS AND REVISED MOTION TO DISMISS:
More than five months after the mother and her former counsel appeared in court to confirm service, for advisement of rights and her plea, a pro forma denial, on October 28, 2005, the respondent mother through her current counsel moved to dismiss the petition filed by DCF to terminate her parental rights. The alleged basis for the dismissal is that "civil process was never commenced in this matter." In support of that claim, the mother cited Connecticut General Statutes ("CGS") section 52-45a: "Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable."
Although termination proceedings may be "essentially civil" proceedings, see In re Samantha C., 268 Conn. 614, 651, 847 A.2d 883 (2004), In re Baby Girl B., 224 Conn. 263, 282, 618 A.2d 1 (1992) and Connecticut Practice Book section 32a-2(a), the statutes specifically applicable to a petition for termination of parental rights are not statutes generally applicable to all civil actions. Instead, CGS section 17a-112 provides as follows for termination proceedings: "(a) In respect to any child in the custody of the Commissioner of Children and Families in accordance with section 46b-129, . . . the commissioner . . . may petition the court for the termination of parental rights . . . The petition shall be in the form and contain the information set forth in subsection (b) of section 45a-715, and be subject to the provisions of subsection (c) of said section . . ."
One of the differences between a civil action and a petition for the termination of parental rights is that the summons issued in connection with such a termination of parental rights case requires an actual appearance by the respondent (who is not denominated "the defendant"), on the selected date and time, for advisement and plea, see Connecticut Practice Book section 33a-7(a), instead of, as in a typical civil action, the filing of a written appearance within two days of a Tuesday return date. See Connecticut Practice Book 3-2(a).
Also, in a termination of parental rights case, the parent has fifteen days from the plea date, Connecticut Practice Book section 34a-9, instead of thirty days from the date of the filing of a written appearance, Connecticut Practice Book section 10-30, to file a motion to dismiss for lack of personal jurisdiction. As set forth herein, the mother's motion to dismiss and revised motion to dismiss were not timely.
In her initial motion to dismiss, the mother cited GGS section 52-56(b) as follows: ". . . [where] there are two or more defendants, any of whom reside outside of the precinct of the officer commencing service . . . any officer may serve the process upon such of the defendants . . . as reside in his precinct, and may, then (1) complete the service himself upon any defendant . . . residing outside his precinct, or (2) deliver the process to an officer of another precinct for service upon any defendant." Mother's October 28, 2005, motion to dismiss, page 2.
The mother asserts that she was not properly served because the father did not live at the "abode" located in the marshal's "precinct" (Middlesex County, the county where the marshal was appointed) when the father was served by the marshal. In connection with her motion to dismiss, the mother did not submit her own affidavit. Instead, she submitted the affidavit of the father's brother. Included in the affidavit is the following: ". . . I know the whereabouts of my said brother . . . during this year of 2005. 4. Immediately after the arrest of [the mother] this year, 2005, my said brother . . . went on a trip to Maine and Vermont. He stayed on said trip for about 2 1/2 to three weeks. 5. At the end of said trip, my said brother . . . came to my address and began living with me at my address [in Hartford County] . . . 6. My said brother . . . lived with me continuously through the end of the summer of 2005. 7. This year, 2005, before [the mother] was arrested, my said brother . . . didn't have a certain address. He lived on the street . . ." The foregoing affidavit averments are not made by either respondent, each of whom was available to do so on October 24, 2005, the date of the brother's affidavit; they do not contain specific dates; they do contain hearsay; and they are contradicted by the testimony of the social worker and the previous finding of this court.
The mother continued in support of her claim of lack of personal jurisdiction: after abode service on the father, who at that time was alleged to be living in Hartford County, the marshal allegedly then left his "precinct" to serve her, and in fact effectuated in hand service on her in New London County.
In a similar case, this court did not question the good faith of the sheriff who made service in his "precinct" (New Haven County), at an address that was a business address instead of an abode, before continuing service in Fairfield County: "The court holds, that when a sheriff, in good faith, starts his service in a place located in the county where he holds office, that constitutes commencement of service sufficient to satisfy statutory provisions permitting him to complete service in other counties." Richardello v. Butka, 45 Conn.Sup. 336, 717 A.2d 298 (1997). In this case, neither the mother's motion to dismiss, nor her revised motion to dismiss, questioned the good faith of the marshal in his initial service, nor the efficacy of notice by publication to the father.
In addition, neither in her initial motion nor in her revised motion to dismiss did the respondent mother make reference to the provisions of the Connecticut Practice Book that are applicable to motions to dismiss in termination of parental rights proceedings. Connecticut Practice Book section 34a-9 provides: "Any respondent . . . wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within fifteen days of the plea date stated on the petition." As set forth above, that did not occur in this case.
Connecticut Practice Book section 34a-11 provides: "Any claim of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 34a-3 and 34a-4 and within the time provided by Section 34a-6." The court interprets this rule to refer both to the sequence set forth in section 34a-6 ("The order of pleadings shall be as follows . . .") and to the time limit set forth in section 34a-9 (. . . within fifteen days of the plea date stated on the petition . . .")
At the November 9, 2005, non-evidentiary hearing on the mother's initial motion to dismiss, the attorneys for both the mother and the father argued that the court's subject matter jurisdiction, instead of personal jurisdiction over the mother and the father, was raised by the mother's initial motion. Since the question of subject matter jurisdiction may be raised at any time in the proceedings, the court gave the mother and the father the opportunity to file additional motions and memoranda of law delineating their position that their claims implicated the court's subject matter jurisdiction. Shortly before the due date of such motions and memoranda, counsel for the father notified the clerk's office that the father did not intend to file any such motion or memorandum. More than fifteen days have passed from the father's plea date, and the father did not raise any claim of lack of personal jurisdiction. As set forth above, after the November 9 hearing, the mother filed a revised motion to dismiss and a memorandum of law.
In a November 2005, decision, the Appellate Court explained: "`A defect in process . . . such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction.' Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004). The defendant's claims concerning service of the summons and complaint implicate personal, rather than subject matter, jurisdiction . . ." Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415 (2005).
With respect to personal jurisdiction, the Appellate Court also explained: "`[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction . . . Accordingly, jurisdiction over a person can be obtained by waiver . . . Unlike the situation with subject matter jurisdiction, a party waives the right to dispute personal jurisdiction unless the party files a motion to dismiss within thirty days of the filing of an appearance . . . Personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time and by the court on its own motion . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction is lost . . .' The defendant thus waived its right to challenge the court's personal jurisdiction by failing to file a motion to dismiss within thirty days after filing an appearance." Id., 415-16.
As set forth above, in connection with a motion to dismiss a petition for termination of parental rights for lack of personal jurisdiction, a respondent has fifteen days after the plea date, rather than thirty days after an appearance, to do so. The respondent mother did not file a motion to dismiss within that time period, e.g., prior to May 21, 2005, and thus waived her right to do so.
In her memorandum in support of her revised motion to dismiss, the respondent mother cited two decisions, Hillman v. Greenwich, 217 Conn. 520, 525, 587 A.2d 99 (1991), and General Motors Acceptance Corp. v. Pumphrey, 13 Conn.App. 223, 535 A.2d 396 (1988), concerning personal jurisdiction. In the Hillman case, ". . . the plaintiff served the original complaint in this action without a writ of summons. On October 28, 1986, the defendant filed a timely motion to dismiss the complaint for lack of personal jurisdiction . . ." Hillman, supra, 217 Conn. at 524. In addition to the absence of a writ of summons, the complaint was materially deficient. The supreme court stated: ". . . our examination of the original complaint reveals only a bare bones complaint, totally lacking in any direction to the proper officer for service or a command to summon the defendant to appear in court." Id., 525. The supreme court held that the defendant's timely motion to dismiss for lack of personal jurisdiction should have been granted by the trial court: "Contrary to the trial court's finding, a writ of summons is a statutory prerequisite to the commencement of a civil action. General Statutes [section] 52-45a. A writ of summons is analogous to a citation in an administrative appeal . . . it is an essential element to the validity of the jurisdiction of the court. Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons. Because the plaintiff in this case failed to comply with these basic requirements, we conclude that trial court should have granted the defendant's motion to dismiss the complaint . . . for lack of personal jurisdiction over the defendant." Id., 526 (citations omitted).
The Hillman decision has been cited recently in Connor v. Statewide Grievance Committee, 260 Conn. 435, 442, 797 A.2d 1081 (2002) in the following context: "It is true that when a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter. See Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991) (mesne process is essential element to validity of jurisdiction of the court; motion to dismiss for lack of jurisdiction should have been granted for plaintiff's failure to comply with requirements of General Statutes [section] 52-45a.) . . ."
In the present case, there is no question as to the trial court's competence to entertain the action before it. Therefore, even if the trial court properly had concluded that the plaintiff was required to serve the appeal in accordance with [section] 52-50 . . . his service by mail would have raised an issue of personal, and not subject matter, jurisdiction. See Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992) ("An improperly executed writ or citation does not . . . affect the subject matter jurisdiction of the trial court. As a defect in having the court acquire personal jurisdiction over the defendant, an improperly executed [writ] may be waived by the defendant.") . . .
"It is fundamental that jurisdiction over a person can be obtained by waiver . . . Practice Book [section] 10-30; see Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999) ([t]he rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book [section] 10-6").
"In the present case, the filing of the defendant's answer, followed by its failure to move to dismiss the complaint within thirty days of the filing of that appearance, constituted a waiver of the defendant's right to contest the trial court's personal jurisdiction over the defendant. Even had service by the plaintiff been improper, the alleged defect raised only a matter of in personam jurisdiction, which the defendant failed to challenge. See Stewart-Brownstein v. Casey, 53 Conn.App. 84, 90, 728 A.2d 1130) (1999) ([n]oncompliance with General Statutes [section] 52-45a and Practice Book [section] 8-1 merely deprived the trial court of jurisdiction over the persons of the defendants unless the defendants waived the lack of personal jurisdiction"). Id., 442-46 (emphasis in original; some citations omitted).
This is not a case where no service, and no attempt at service, was made on the respondent mother or the respondent father. See Bicio v. Brewer, 92 Conn.App. 158, 164-65 (2005): "We are not faced with a circumstance, however, where there has been some defect in the service by the plaintiff with respect to the state. Were that the case, the waiver rule would apply. Instead, the facts and circumstances of the present case differ in that no service and no attempt at service was ever made on the state. Accordingly, the general waiver rule with respect to jurisdiction over the person is inapplicable." (Emphasis in original.) In Bicio, the General Motors Acceptance decision cited by the respondent mother is set forth as a "no attempt at service of process" holding, id., 167, instead of as a possibly failed service of process.
For the reasons stated above, including but not limited to the court's May 6, 2005, finding of actual service on the mother and the father, and the mother's failure to raise issues of personal jurisdiction within fifteen days thereof, the mother's motion to dismiss, as revised, is neither timely nor otherwise persuasive, and thus it is denied. See In re Symohony S. And Jonathan F., superior court for juvenile matters, judicial district of New Britain at Plainville (Quinn, J., September 24, 2005).
As set forth above, this is a case where no genuine issue of material fact exists. This is not a case where there are contested issues of fact necessary to be determined in a trial-type hearing before the court's decision can be made. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 55-56, 459 A.2d 503 (1983); see Amore v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994) ("Moreover, in the absence of any disputed issues of fact pertaining to jurisdiction, there was no need to hold an evidentiary hearing before deciding the motion to dismiss.")