IN RE: Elijah E. (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

The respondent father, Brahim E., has moved this court to dismiss the petition filed by the Department of Children and Families to terminate his parental rights, premised on his claim of a lack of subject matter jurisdiction, General Statutes §§ 46b-115k and 46b-115l, Practice Book §§ 34a-9 and 34a-10(a)(1);  as well as improper venue, Practice Book § 34a-10(a)(2).

Elijah E. is three years of age (date of birth:  June 11, 2007).   A ninety-six-hour hold was invoked by DCF on December 27, 2007, and, on that same date, DCF filed an ex parte motion for temporary custody and a neglect petition.   The court granted the ex parte motion and ordered the child into the temporary custody of DCF on December 27, 2007.   On January 4, 2008, the court ordered a priority interstate compact study as to maternal grandparents who live in Florida.   The order of temporary custody was sustained on March 19, 2008.   On that same date, the court granted DCF's motion for out-of-state placement pursuant to the approved interstate compact study and the child was placed with his maternal grandparents in Florida.   On August 21, 2008, the child was adjudicated neglected and committed to the care and custody of DCF. DCF continued the foster-parent placement of the child with the maternal grandparents and, to the present time, Elijah continues to reside in Florida with them.

Petitions for termination of parental rights were initially filed on January 21, 2009, but were withdrawn on April 8, 2009, when a second set of petitions was filed.   The petitions alleged failure to rehabilitate on the part of mother and father, and, as to father, also alleged abandonment and no on-going parent child relationship Publication service on mother (in the Republican American in Waterbury, Connecticut, and in the News Herald in Panama City, Florida) was confirmed by the court on May 20, 2009.   Although in-hand service on Brahim E. was attempted on July 1, 2009, and may have been accomplished, there were questions of timeliness, with no waiver of defects, and DCF filed a new petition on December 10, 2009.   Service of that petition, believed to be in-hand, could not be confirmed because of the lack of a marshal's return of service.   In-hand service of the April 6, 2010 petition was confirmed on May 12, 2010.

Paternity of Brahim E. as to Elijah E. was established by the court on March 19, 2008.

Respondent father is incarcerated in the state of Connecticut and anticipates that, upon release, his probation will to be transferred to Florida.   Respondent father contends that neither the child's mother nor the child has maintained a presence in, or had any connection to, the state of Connecticut since the placement of the child in Florida in March 2008;  that mother maintains a residence in Florida;  and that he will be residing in Florida after his release.   Aside from the fact that the child is committed to it and that it continues to be responsible for the child, DCF does not contest these representations.

Respondent father's claim is that this court lacks subject matter jurisdiction because, at the time of the commencement of the termination action against him, none of the jurisdictional prerequisites of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as adopted by the State of Connecticut, were met.   The governing statute provides:

(a) Except as otherwise provided in section 46b-115n [temporary emergency jurisdiction], a court of this state has jurisdiction to make an initial child custody determination if:

(1) This state is the home state of the child on the date of the commencement of the custody proceeding;

(2) This state was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from the state, and a parent or person acting as a parent continues to reside in this state;

(3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships;

(4) A court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision substantially similar to section 46b-115q [inconvenient forum] or 46b-115r [jurisdiction declined by reason of conduct], the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships;

(5) All courts having jurisdiction under subdivisions (1) to (4), inclusive, of this subsection have declined jurisdiction on the ground that a court of this state is the more appropriate forum to determine custody under a provision substantially similar to section 46b-115q or section 46b-115r;  or

(6) No court of any other state would have jurisdiction under subdivisions (1) to (5), inclusive, of this subsection.

(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

General Statutes § 48b-115k.

In light of the conclusions reached below, the court will not address the distinctions of “subject matter jurisdiction” and other bases for claims of lack of jurisdiction.   See O'Connell v. Doody, 124 Conn.App. 1, n.9 (2010).

The respondent's argument might have some merit if the petition to terminate parental rights constituted the “initial child custody determination” in this matter.   However, the respondent ignores other applicable statutory provisions.   Within the same UCCJEA to which respondent makes invocation, specifically in General Statutes § 46b-115a, the following applicable definitions are found:

․ (3) “Child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody or visitation with respect to a child.   The term includes a permanent, temporary, initial and modification order.   The term does not include an order relating to child support or other monetary obligation of an individual;  ․

(8) “Initial determination” means the first child custody determination concerning a particular child;  ․

The petition to terminate parental rights is not the initial child custody determination as to Elijah.   Prior thereto, in this Connecticut court, there had been an ex parte order of temporary custody, a sustaining of that order of temporary custody, and an adjudication of neglect with a disposition of commitment to DCF.

Furthermore, the provisions of the Interstate Compact on the Placement of Children adopted by this state, General Statutes § 17a-175, stand staunchly in the way of respondent's dismissal attempts.   Article V thereof provides in relevant part:

(a) The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained in the sending agency's state, until the child is adopted, reaches majority, becomes self-supporting or is discharged with the concurrence of the appropriate authority in the receiving state.   Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law.   The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement ․

Respondent father also asks this court to dismiss the case on the basis of a claimed improper forum.   The court assumes that respondent father is invoking the doctrine of forum non conveniens as codified in General Statutes § 46b-115q.   However, even if this court determined that the Connecticut court constitutes an inconvenient forum, the relief authorized by the statute is not dismissal, but instead is a stay of the proceedings premised on the condition that the custody proceeding be promptly commenced in another designated state. § 46b-115q(c).  In addition, even if the other requirements of the statute were met, no evidence was submitted reflecting the potential commencement of a custody action in the state of Florida, or any other state.   Consequently, neither a dismissal, nor a stay, is appropriate on this basis.

The motion to dismiss is denied.

Constance L. Epstein, J.

Epstein, Constance L., J.