Opinion
No. CV 07 4011010 S
May 31, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS (101.00)
FACTS
On September 5, 2006, the Probate Court for the district of Greenwich held a hearing on the petition of the defendant, Noreen Onate Gaffney, to terminate the parental rights of the Plaintiff, Victor Onate, to the parties' biological child, Megan. On October 18, 2006, the Probate Court issued a decree in which it granted the defendant's petition, terminated the plaintiff's parental rights, and gave sole legal custody of Megan to the defendant. Thereafter, on January 17, 2007, ninety days from the date of the Probate Court decree, the plaintiff filed an appeal pursuant to General Statutes § 45a-186, which was signed by the Probate Court, Hopper, J., that same day. The plaintiff then filed this action to appeal the Probate Court's decree.
General Statutes § 45a-186 provides in relevant part: "Appeals from probate. (a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section. . . (b) Any such appeal shall be filed in the superior court for the judicial district in which such court of probate is located except that. . . any appeal in a matter concerning removal of a parent as guardian, termination of parental rights or adoption shall be filed in the superior court for juvenile matters having jurisdiction over matters arising in such probate district."
On March 13, 2007, the defendant filed an appearance and a motion to dismiss, accompanied by a memorandum of law. The defendant argues that the court lacks jurisdiction over the present case because the plaintiff failed to institute the appeal within the time required by General Statutes § 45a-187(a). On March 23, 2007, the plaintiff filed an objection to the motion to dismiss, also accompanied by a memorandum of law. The matter was heard on the short calendar on April 2, 2007.
General Statutes § 45a-187(a) provides: "An appeal under section 45a-186 by persons of the age of majority who are present or who have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within thirty days, except as otherwise provided in this section. If such persons have no notice to be present and are not present, or have not been given notice of their right to request a hearing, such appeal shall be taken within twelve months, except for appeals by such persons from an order of termination of parental rights, other than an order of termination of parental rights based on consent, or a decree of adoption, in which case appeal shall be taken within ninety days. An appeal from an order of termination of parental rights based on consent, which order is issued on or after October 1, 2004, shall be taken within twenty days."
DISCUSSION
"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. . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). A timely-filed motion to dismiss is the proper procedural vehicle for raising the issue of whether a probate appeal was timely filed. Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 567, 192 A.2d 44 (1963).
The defendant argues that this court lacks jurisdiction in that the plaintiff's appeal is untimely because, pursuant to Section 45a-187(a), the plaintiff was required to initiate the appeal within thirty days of the Probate Court decree. The defendant specifically points to the language in Section 45a-187(a) stating that "persons. . . who are present or have legal notice to be present" at the hearing must take an appeal "within thirty days," and argues that the alternate ninety-day time period provided by the statute applies only to persons who "have no notice to be present and are not present" for the Probate Court hearing. According to the defendant, the thirty-day time limit applies in this case because the plaintiff not only was given notice of the hearing for the termination of his parental rights, but also retained an attorney who attended the hearing and filed an appearance in the Probate Court on his behalf.
The defendant attached certified copies of the Probate Court notice and the plaintiff's appearance, respectively, as exhibits to support her motion to dismiss.
The plaintiff does not contend that he did not have notice of the Probate Court hearing or that his attorney did not attend the hearing. Instead, the plaintiff objects to the motion on the ground that pursuant to Section 45a-187(a), appeals from cases terminating parental rights fall into a separate category that allows a party ninety days to appeal. To support his argument, the plaintiff points to a sentence in a handbook that is provided gratis to members of the public by the Probate Court Administrator's Office which states that "[i]n a termination of parental rights proceeding or an adoption proceeding, the appeal must be taken within 90 days from the date of the order, denial, or decree."
"The right to appeal from a decree of the Probate Court is purely statutory and the rights fixed by statute for taking and prosecuting the appeal must be met." State v. Goggin, 208 Conn. 606, 615, 546 A.2d 250 (1988). Nevertheless, "[t]he effect of a failure to file an appeal on time is to make the appeal voidable but not void. . . The statute of appeals is principally and primarily concerned with the rights of the parties rather than with the powers of the probate court. . . [T]he statute limiting the time for taking appeals from probate is a statute of limitations in the ordinary sense, and was intended primarily and principally to limit the right of the appellant and to protect the rights of the appellee, and not to limit directly and absolutely the power of the probate court to allow an appeal after the time has passed or to affect the jurisdiction of the Superior Court over an appeal, so allowed, if not objected to in the proper way and at a proper time." (Citation omitted; internal quotation marks omitted.) Heiser v. Morgan Guaranty Trust Co., supra, 150 Conn. 566-67.
The statute that governs the time limits for probate appeal is General Statues § 45a-187(a), which provides in relevant part: "An appeal under section 45a-186 by persons. . . who are present or who have legal notice to be present. . . shall be taken within thirty days, except as otherwise provided in this section. If such persons have no notice to be present and are not present. . . such appeal shall be taken within twelve months, except for appeals by such persons from an order of termination of parental rights. . . in which case appeal shall be taken within ninety days." The Probate Practice Book includes a chapter on appeals from probate, including a section entitled "Time to Appeal," which mirrors the requirements set forth in § 45a-187(a).
General Statutes § 45a-78 provides a procedure for the Probate Court Administrator to compile such regulations into a Probate Practice Book.
Our Supreme Court has stated that "§ 45a-187(a) requires that an appeal from probate must be taken within thirty days except in limited circumstances." Metcalfe v. Sandford, 271 Conn. 531, 537, 858 A.2d 757 (2004). The applicable provisions of the Probate Practice Book and Section 45a-187(a) plainly state that a plaintiff who, as in the present case, had notice of and was present through his attorney at the hearing, has thirty days to appeal from the Probate Court decree terminating his parental rights. The alternate ninety-day period only applies to "such persons" in termination of parental rights cases, who, unlike the plaintiff, did not have notice to be present at the hearing and were not present. As the Superior Court explained in In re Michael B., Superior Court, judicial district of Middletown, Docket No. FA 95 0127688 (May 31, 1996, Foley, J.) (17 Conn. L. Rptr. 116, 116), "[a]n appeal from probate is normally taken within thirty days, but if someone was aggrieved by an order as described in General Statutes § 45a-186, and did not have notice to be present. . . the time for taking an appeal is longer. For all [such] appeals excepting termination of parental rights cases, the time period is twelve months. For cases terminating parental rights, the time for taking an appeal is ninety days."
As our Supreme Court has instructed, "in seeking to ascertain the meaning of a statute, [the court] must consider General Statutes § 1-2z, which provides: `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.' " Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 689, 894 A.2d 919 (2006).
Regarding the plaintiff's contention that he was misled by the Probate Court handbook, in Heiser v. Morgan Guaranty Trust Co., supra, 150 Conn. 566, our Supreme Court stated that "[t]he Superior Court cannot cure the legal insufficiency of the [probate] appeal or overcome defects in it by amendment or by the taking of evidence. . . Nor can it, by giving effect to pleadings filed with it, alter the conclusiveness of the record of the Court of Probate as to the late filing of the appeal in that court. . . Consequently, the Superior Court could not, by the exercise of equitable principles or otherwise, relieve the plaintiff from the effect of the late filing of the appeal." (Citations omitted.)
Nevertheless, our courts have denied motions to dismiss untimely filed probate appeals when the plaintiff has established that the Probate Court itself caused the plaintiff to commence the appeal beyond the thirty-day limitation found in Section 45a-187. For example, in Kron v. Thelen, 178 Conn. 189, 423 A.2d 857 (1979), the Supreme Court held that the trial court improperly granted the defendant's motion to dismiss a probate appeal on the ground that it was not timely filed where the plaintiff's failure to comply with the thirty-day requirement was caused by the Probate Court. As the court noted, the Probate Court failed to issue notice of its decree to the parties and, when the plaintiff's counsel telephoned the Probate Court's office to inquire about the status of the matter, the office erroneously informed him that no action had been taken. As the court broadly stated, "[t]he plaintiff's statutory right of appeal could not be defeated by the mistake of the Probate Court." Id., 196. Similarly, in Molleur v. Perkins, 82 Conn.App. 468, 844 A.2d 916, cert. denied, 270 Conn. 912, 853 A.2d 527 (2004), the Appellate Court held that the trial court improperly granted the defendant's motion to dismiss a probate appeal on the ground of lack of timeliness, where the plaintiff's failure to comply with the thirty-day requirement was caused by the failure of the probate judge to promptly grant her motion to appeal. As the court noted, "[w]hether the Probate Court was guilty of negligence, of inadvertence or of mistake in failing to do its legal duty should not deprive the innocent plaintiffs of their right to take an appeal." (Internal quotation marks omitted.) Id., 471.
The main factor that distinguishes these cases from the facts of the present case can be summarized as follows: In the former cases, the plaintiffs, having taken appropriate steps to assure that their appeals were timely filed, "could do no more than [they] did to preserve [their] right to appeal. . ." Kron v. Thelen, supra, 178 Conn. 196. In the present case, the plaintiff relied upon an incorrect statement in a handbook which contains a disclaimer noting that: "This brochure was designed to explain the basic aspects of a complex body of laws with which most people are not familiar. It is not a complete review of the subject, but a guide to help those with commonly asked questions. For answers to specific procedural questions, your local Probate Court would be happy to assist you. For problems related to substantive matters of a specific nature, competent professional advice should be sought." Moreover, both the plaintiff and most certainly his attorney, had access to the applicable statute which plainly contradicts the handbook provision that the plaintiff relied upon.
It is nonetheless the court's hope that the Probate Court Administrator take note of this discrepancy and amend its handbook accordingly.
Accordingly, the plaintiff's reliance on the handbook does not excuse him from complying with the plainly stated requirement of filing his appeal within thirty days of the decree. The plaintiff's appeal was untimely filed. As a result, the court lacks jurisdiction in the present case, and the defendant's motion to dismiss is granted.