IN RE: Alaena Q. (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

On January 27, 2010, the mother of the minor child, filed a “Motion To Restore Guardianship,” asking that guardianship of her daughter be returned to her.   By order dated July 13, 2006 the guardianship of the minor child had been placed in the child's maternal grandmother.   On September 20, 2010, the morning of the third day of the hearing on mother's motion, maternal grandmother filed a motion to dismiss claiming that the court does not have jurisdiction to consider the Motion to Restore Guardianship.   The motion is based entirely on maternal grandmother's reading of Conn. Gen.Stat. § 46b-121(a)(1).   She argues that section specifically provides that the court's jurisdiction “does not include matters of guardianship.”

This argument is without merit.   Not only does the motion to dismiss ignore the entire language of the § 46b-121(a)(1), it misquotes it.   After setting forth the matters within the court's jurisdiction, the section provides that it “does not include matters of guardianship and adoption or matters affecting the property rights of any child or youth over which the Probate Court has jurisdiction.”  (Emphasis added.)   The Probate Court has never had jurisdiction over this matter.   It began as a neglect petition, and the placing of guardianship with maternal grandmother only occurred after mother entered a plea of nolo contendere to the neglect petition.   Thus, this matter is not a guardianship matter over which the Probate Court had jurisdiction.

Furthermore, it is clear that the reference in the statute to the Probate Court was meant to modify guardianship and adoption matters as well as matters affecting property rights.   The motion to dismiss suggests otherwise by incorrectly quoting the statute by inserting a comma after the word adoption.   If the comma actually existed, the statute might properly be read such that the reference to the Probate Court would be limited to matters affecting property rights and not to guardianship and adoption matters.   The comma though does not exist in the statute.   Thus, the language is properly read as applying the Probate Court modifier to guardianship, adoption and matters affecting property.

In addition, maternal grandmother's reading of § 46b-121(a)(1) is inconsistent with the Practice Book. Section 35a-20(a) provides:  “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 the 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.”   Mother's motion falls squarely within this language.   This court ordered the transfer of guardianship, and mother is expressly permitted to file this motion seeking reinstatement of her guardianship.

Maternal grandmother argues that pursuant to subsection (d) of § 35a-20 the court must determine that it still has custody jurisdiction before acting on such motion, and for the reasons previously stated, the court does not have jurisdiction.

The court, having rejected maternal grandmother's jurisdictional argument, finds that it does have jurisdiction to act on mother's motion.   This matter arose as a neglect petition over which the court clearly had jurisdiction.   Furthermore, the court's file reflects that the court and the parties intended that the court retain jurisdiction over the matter.   The court's order:  1) adjudicating the minor child neglected based on mother's plea of nolo contendere;  and 2) granting guardianship of the child to maternal grandmother was the product of the parties' agreement reached one month earlier, on June 14, 2006, in a judicial pretrial conference.   The notes of that conference reflect the parties' agreement in principle that mother would enter her plea and that maternal grandmother would be appointed the minor child's guardian.   The notes also state that, “juvenile court to retain jurisdiction.”  Section 46b-121(b)(1) of the General Statutes specifically provides that the court has authority to make and enforce its orders directed to parents and guardians.   Our Supreme Court recently interpreted this provision as vesting the court with continuing jurisdiction over one class of juveniles identified in the statute-those “committed to or in the custody of the Commissioner of Children and Families.”  In re Matthew F., 297 Conn. 673, 695 (2010).¹  The reasoning applies with equal force to the other classes of juveniles identified in the statute, including “a child or youth subject to the court's jurisdiction.”   The minor child in this case was clearly subject to the court's jurisdiction during the neglect petition and the court retains its jurisdiction and authority to make and enforce its orders regarding her care and welfare.

Finally, this case is very similar to In re Cameron C., 103 Conn.App. 746, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906, 942 A.2d 414 (2008), in which the Appellate Court affirmed the trial court's granting of relief virtually identical to that sought by mother here.   In that case, the minor child had been adjudicated neglected and guardianship was placed in the maternal grandmother.   Thereafter, the child's father sought to transfer custody and guardianship to him.   The maternal grandmother opposed his motion to do so.   The trial court granted the father's motion and the grandmother appealed.   The issue on appeal was whether the court used the correct standard for resolving the father's motion.   The trial court applied the provisions of Conn. Gen.Stat. § 46b-129(m), which relates to motions to revoke commitment.   The grandmother argued that the court should have applied the provisions of § 46b-56, which relate more generally to custody determinations.   The Appellate Court determined that because the father sought return of his child to his custody without protective supervision what he really was seeking was a revocation of commitment, and, therefore, § 46b-129(m) applied.   Id., 751-52.   In doing so, the Court held that the primary authority for revoking commitment is vested in the trial court.  Id. Consequently, there was no question whatsoever that the trial court had jurisdiction to consider the father's motion.

The same analysis applies in this case.   Mother's motion is entitled “Motion To Restore Guardianship.”   At the same time, she seeks the same relief sought by the father in Cameron C. Thus, one might question whether the court should treat her motion as a motion to revoke commitment, as the Appellate Court did in Cameron C. In fact, the parties have proceeded as if it is such a motion, agreeing from the outset that the test employed for motions brought under § 46b-129(m) applies to this case.   While the court, for the reasons set forth above, believes that mother's motion fits squarely within the language of Practice Book § 35a-20, under the Appellate Court's analysis in Cameron C., it could also be viewed as a motion under § 35a-16.   Given that there was no question regarding the trial court's jurisdiction in Cameron C., there can be no question as to this court's jurisdiction to hear a virtually identical motion in this case.

For all the foregoing reasons, maternal grandmother's motion to dismiss is DENIED.

Bright, J.

FOOTNOTES

FN1. In that case, the Supreme Court addressed whether the superior court retained jurisdiction to issue orders in a case after the juvenile reached the age of eighteen.   Although the Court held that, in general, the superior court had continuing jurisdiction over such individuals, in that particular case, the Court found there was no subject matter jurisdiction because the juvenile failed to allege certain facts necessary to confer jurisdiction on the superior court, in particular that he was attending school after reaching the age of eighteen.  Id., 696..  FN1. In that case, the Supreme Court addressed whether the superior court retained jurisdiction to issue orders in a case after the juvenile reached the age of eighteen.   Although the Court held that, in general, the superior court had continuing jurisdiction over such individuals, in that particular case, the Court found there was no subject matter jurisdiction because the juvenile failed to allege certain facts necessary to confer jurisdiction on the superior court, in particular that he was attending school after reaching the age of eighteen.  Id., 696.

Bright, William H., J.