Commissioner of Social Services (Shauntelle Carter) v. Anthony Smith (2011)

MEMORANDUM OF DECISION

The instant matter is an appeal brought by the Petitioner, Commissioner of Social Services (hereinafter referred to as the “Petitioner DSS”), pursuant to Connecticut General Statutes § 46b-231(n) seeking judicial review of an order issued by a family support magistrate (Lifshitz, F.S.M).  Said statute allows “A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review ․” Id. at (1).

The facts necessary to decide this matter are as follows.   Shauntelle Carter applied for Non-Public Assistance IV-D services pursuant to Connecticut General Statutes § 17b-179 during the summer of 2010.   The Petitioner DSS brought a support petition against Anthony Smith, the acknowledged father of the minor children subject of the support petition.   The matter was on the family support magistrate docket for November 1, 2010, and was continued to December 6, 2010 as neither party was present.   On December 6th the mother reported that she wished to terminate her IV-D services and not proceed with the support petition.   Mother was not a recipient of any public assistance and the father, who was also present, was in agreement.   Since there was no state interest to protect, the Petitioner DSS did not object to mother's request and asked the court to dismiss the petition.

The family support magistrate declined to dismiss the petition on the grounds that since the parents were not an intact family, the court needed an independent third party to report that a dismissal would not be harmful to the children.   The court appointed a guardian ad litem (GAL) to investigate and report to the court the financial circumstances of the children.   Said appointment was over the objection of the parents and the Petitioner DSS.

The threshold issue is whether or not the order of the family support magistrate is a “final decision” under the statute.¹  The GAL argues that it is not a final order and that this appeal is premature.   The Petitioner DSS counters that the mere fact that this family unit will be required to tolerate the interference of the GAL on any level should justify the appeal.   They look to the exception to the final order rule established by the ruling in State v. Curio, 191 Conn. 27 (1983).

The right to appeal a ruling of a family support magistrate is a statutory right.   The Curio rule sets forth two exceptions to the final order requirement of the statute authorizing appeals.   The Supreme Court ruled “we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for the purposes of appeal.”  Id. at 31.   Of those two exceptions, only the second one applies to this matter “․ where the order or action so concludes the rights of the parties that further proceedings cannot affect them.”  Id. This exception “focuses not on the proceedings involved, but on the potential harm to the appellant's rights.   A [preliminary] order will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial.”  Id. at 33-34 internal citations eliminated.   The Petitioner DSS claims that the parents by being “subjected to the interference, investigation and scrutiny of the GAL/AMC” at this preliminary stage of the proceedings puts them in the face of “real harm to their constitutionally protected right to make decision[s] for their children without the interference and oversight of the GAL/AMC.”   The Petitioner DSS cites the United States Supreme Court cases such as Troxel v. Granville, 530 U.S. 57 (2000) in support of this claimed constitutional right.

The Petitioner DSS is stretching the Troxel holding in attempting to apply it to the facts of this case.   The family support magistrate's order to appoint a GAL was not designed nor intended to interfere with, or even oversee, the parental decisions of these parents regarding their children.   The appointment was to provide the court with information to affirm the representations that were being made to the court as the reason for the request to dismiss the petition for child support.   Under the provisions of Connecticut General Statutes § 46b-215(a)(1) the family support magistrate has the power to establish a support order necessary to support a person's child if that is not being done.   Once a support petition has been brought and the allegation of non-support has been made, that family support magistrate has an obligation to be sure that the child is being supported despite the representations made by the parties.   It is an independent obligation, and the appointment of a GAL to investigate the reality of the situation is a reasonable method of meeting that obligation.   The GAL is not authorized to interfere with or impede any parental authority or decisions, but simply to investigate and report to the court.   The argument that the parents may incur an expense in the form of a fee to the GAL is speculative at this point since there is no order for the parents to pay, only a comment by the magistrate that they might.

The appeal is denied as not being an appeal from a final order.

SO ORDERED.

BY THE COURT

Adelman, J.

FOOTNOTES

FN1. There is also the question whether the Petitioner DSS is an “aggrieved” person under the statute.   The court elects to leave that question for another day..  FN1. There is also the question whether the Petitioner DSS is an “aggrieved” person under the statute.   The court elects to leave that question for another day.

Adelman, Gerard I., J.