IN RE: Iliana M. (2011)

MEMORANDUM OF DECISION Re Motion to Dismiss Order of Temporary Custody

This is an action alleging that Iliana M., born February 14, 2011, in Worcester, Massachusetts is a neglected child and seeking an order of temporary custody (OTC).   For good and sufficient reasons as set forth in the accompanying affidavits, the Superior Court for Juvenile Matters granted an order of temporary custody in favor of the Department of Children and Families (DCF).  Thereafter the parents of the child in question filed a motion seeking to dismiss the order of temporary custody.

This court heard testimony on the issue of jurisdiction.   Both acknowledged parents were present and represented by counsel.   Neither the mother Tara M–R, nor the putative father, Edward A., presented evidence or testified.   The State called Tara's present social worker and the court permitted telephonic testimony of a Massachusetts Department of Children and Families social worker.   All counsel were allowed the opportunity to examine the witnesses.   The parents attempted to assert that they were no longer residents of Connecticut and had moved to Massachusetts.

The court finds the following facts.

1) The minor child, Iliana, was born on February 14, 2011, at the University of Massachusetts Memorial Hospital in Worcester, Massachusetts.

2) While Tara is still married to her lawful husband, Felipe M., she represents that Edward A., a man who is not her husband, is the putative father of Iliana.

3). This court has previously terminated the parental rights of Tara M–R, to another child, Christian M–R (July 8, 2008).   A copy of that judgment has been judicially noticed.¹

4) In addition to the child, Christian, whose parental rights were terminated, Tara gave birth in Connecticut to twin girls on October 28, 2009.   Those children are not in Tara's care;  they are presently committed to the Commissioner of DCF and are now living in foster care in Connecticut.   A permanency plan for the twins calls for termination of Tara's parental rights and adoption.

5) Tara married her present husband, Felipe, in Willimantic in 2000.   As far as DCF knows, Tara has lived her whole life in Connecticut.   She was born in New London, CT, and went to high school in Windham, CT. It is not disputed that Tara has lived frequently with her mother at 75 Chapman Street, Willimantic.   DCF has been actively involved with Tara for, at least, the past seven years and her residence has always been in the vicinity of Willimantic.

6) Tara lists her mailing address with this court as 75 Chapman Street, Willimantic CT.

7) The Petitioner introduced three police reports dated, August 29, 2010, January 12, 2011 and February 26, 2011, all of which involved Tara. All of the incident reports list her address as 75 Chapman Street, Willimantic CT.

8) A Willimantic Police Incident report dated February 26, 2011, lists Edwin Antonio A., as a suspect in that incident with an address of 455 Ash St. Willimantic, Ct.

9) Forty-six-year-old Edwin A. filed a financial affidavit with this court on February 22, 2011, seeking appointment of counsel.   He listed his address as 455 Ash Street, Willimantic.

10) On February 3, 2011, the DCF social worker was sufficiently concerned about Tara's welfare before the child was born that she contacted the Willimantic police to do a well-person check on Tara at 75 Chapman Street, Willimantic.   Shortly thereafter, Tara called the social worker and wanted to know why the police were “at her house.”

11) When the child was born in Massachusetts, the hospital workers alerted the Massachusetts DCF office of their concerns.  (Petitioner's Exhibit A.) Tara told the DCF worker that she had been staying in North Cambridge, Massachusetts for two weeks, but could not give the last name of the people she had stayed with.   She also told the worker that she was planning on residing in Southbridge, Massachusetts but did not have an address in that community.

12) Both Edward and Tara provided their Connecticut addresses to the Massachusetts hospital.

13) While the Massachusetts agency was investigating the case, they learned that the Connecticut child protection agency (DCF) was involved and that Tara had three children that had previously been removed from her care.   While the Massachusetts agency seemed ready to assist the Connecticut DCF, they reported that they were unable to take custody for another state.²  Tara ultimately told the Massachusetts authorities that her lawyer told her to come to Massachusetts so that Connecticut will not be legally able to remove the child from her custody.

14) Thereafter the Connecticut DCF personnel sought and obtained an order of temporary custody from the Connecticut court.   The social workers went to Massachusetts and removed the child from the hospital.   The child is now in foster care in Connecticut.

15) This court finds that Connecticut is the home state and residence of Tara and Edward and that their representations to the Massachusetts authorities were not truthful with respect to their residence and their intentions to live in Massachusetts.

16) The court specifically finds that at the time of the institution of these proceedings, Tara and Edward were residents of Willimantic CT.

LAW:

“[S]ubject matter jurisdiction ․ cannot be created by consent or waiver ․ Only the enabling legislation ․ can confer subject matter jurisdiction.”   (Citation omitted;  internal quotation marks omitted.)  Muller v. Muller, 43 Conn.App. 327, 331–32, 682 A.2d 1089 (1996).   In re Leona D., Docket # CP10–013578, 3/16/11 (Frazzini, J.).

The petitioner, DCF, in its' brief, argues that In re Joseph W., 121 Conn.App. 605 (2010), supports the position that this court has jurisdiction when parents flee from Connecticut and give birth in another state to avoid DCF from removing a newborn.   The case does not stand for that proposition at all.   It is crucial to note that in both In re Joseph W. supra, and in In re Leona D. supra, the child protection agencies in the state where the child was born, did act to protect the child.   In this case Massachusetts did not act.

The enabling legislation that confers jurisdiction for an order of temporary custody and a neglect petition in Connecticut is § 46b–121(a)(1) of the General Statutes.   This statute states in part;  “Juvenile matters in the civil session include all proceedings concerning uncared-for, neglected or dependent children and youths within this state ․” (Emphasis added.)

It is not disputed that at the time the order of temporary custody was issued, the child was not within the state and had never been within the state.   The child was in the Commonwealth of Massachusetts and a court of Massachusetts could, and perhaps should, have acted to protect this child.   It is unclear from the testimony whether the Massachusetts child protection agency initially declined to intervene or whether the Connecticut child protection agency pre-empted any Massachusetts action.

The General Laws of Massachusetts have an act concerning jurisdiction which is similar, but not identical to the Uniform Child Custody Jurisdiction and Enforcement Act, see Umina v. Mabica, 72 Mass.App.Ct. 351, 354–56 (1986).   However, G.L.C. 209B § 2(3) of the Massachusetts Child Custody Jurisdiction Act, is substantially the same as the Connecticut temporary emergency jurisdiction of the child that may be granted pursuant to General Statutes § 46b–115n(a)(2).   That statute provides in relevant part:  (a) A court of this state has temporary emergency jurisdiction if the child is present in this state and (1) the child has been abandoned, or (2) it is necessary in an emergency to protect the child because the child ․ has been, or is under a threat of being, abused or mistreated ․

“This law confers on courts in states that do not have jurisdiction to enter or modify permanent custody orders the authority to enter temporary emergency custody orders to protect children at risk of abuse or mistreatment while the parties and courts resolve the emergency.”   Scott v. Somers, Superior Court, judicial district of New Haven, Docket No. FA 04 4001981 (September 22, 2006, Frazzini, J.).   Massachusetts could have assumed temporary emergency jurisdiction and thereafter, if it determined that Connecticut was the more convenient forum, could have declined to exercise further jurisdiction.   In Connecticut, § 46b–115q(c) provides that “[i]f a court of this state determines that it is an inconvenient forum, and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.”

While it is not clear that the Uniform Child Custody Jurisdiction and Enforcement Act ever actually contemplated juvenile court proceedings, it is clear to this court that a mechanism does exist under the act for the orderly assumption and transfer of jurisdiction to an appropriate and convenient forum.   Such was the case in both In re Joseph W and In re Leona D. Self-help, while well intentioned and expedient, is not to be encouraged.

Since the child was not within the state of Connecticut at the time the order of temporary custody was entered, the order is vacated and the neglect petition is dismissed without prejudice.

Foley, Sr. J.

FOOTNOTES

FN1. In re Christian M–R, an unpublished decision (Foley, Sr. J.) No W10CP06 015043 A 2008WL 2966845 (Conn.Super.2008)..  FN1. In re Christian M–R, an unpublished decision (Foley, Sr. J.) No W10CP06 015043 A 2008WL 2966845 (Conn.Super.2008).

FN2. It is surprising that the various state child protection agencies do not have a protocol to address this situation, which cannot be all that uncommon..  FN2. It is surprising that the various state child protection agencies do not have a protocol to address this situation, which cannot be all that uncommon.

Foley, Francis J., S.J.