IN RE: Nicholas I. (2011)

MEMORANDUM OF DECISION

MOTION TO STRIKE

On November 23, 2010, the Department of Children and Families (DCF) filed neglect petitions alleging that the children are being denied proper care and attention and permitted to live under conditions injurious.   To substantiate the allegations of the petition, DCF attached an addendum to the petition of neglect, dated November 19, 2010, and a summary of facts, dated November 19, 2010, which are incorporated by reference.   See Practice Book § 33a–1.   General Statutes § 46b–129(a) provides that “the Commissioner of Children and Families ․ having information that a child ․ is neglected ․ may file with the Superior Court that has venue over such matter a verified petition plainly stating such facts as bring the child ․ within the jurisdiction of the court as neglected ․ within the meaning of section 46b–120 ․” (Emphasis added.)

On February 3, 2011, respondent, Heather I., filed a motion to strike neglect petitions and to sanction DCF on the grounds that the petitions are legally insufficient.   On February 24, 2011, respondent, Stephanie M., filed a motion to strike neglect petitions and to sanction DCF on the same grounds.   On February 24, 2011 DCF filed an objection.   The pleadings were accompanied by an appropriate memorandum of law.   See Practice Book § 34a–17.

Practice Book § 34a–15(a) provides in relevant part:  “Whenever any party wishes to contest:  (1) the legal sufficiency of the allegations of any petition, or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested petition or part thereof.”   The standard of review for a motion to strike is well-known.   The court must accept as true all well pleaded facts.   Peter Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270 (1998);  Parsons v. United Technologies Corp., 243 Conn. 66, 68 (1997).   A motion to strike requires no factual findings by the trial court.  Vacco v. Microsoft Corp., 260 Conn. 59, 65 (2002).   The allegations must be construed in the light most favorable to pleader.  Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772 (2002);  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994).   The court must determine whether pleader stated a legally sufficient cause of action.   Parsons v. United Technologies Corp., supra, 738 Conn. 68.   The court cannot rely on facts outside of pleading.  Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348 (1990).

The facts alleged by DCF lack sufficient specificity that the children are being “denied proper care” or are living under “conditions injurious.”   Therefore, the petition is appropriately stricken under governing law.  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).   The motions to strike are granted, and the requests for sanctions are denied.

SO ORDERED:

Bentivegna, J.

Bentivegna, James M., J.