IN RE: C.M.1 (2011)

DECISION ON MOTION TO REARGUE

The court entered its Decision on the respondent's (C's) Emergency Motion on May 6, 2011 [51 Conn. L. Rptr. 847] in which it found that the petitioner Department of Children and Families (“the department” or “DCF”) acted in violation of C.M.'s constitutional and due process rights when it transferred her out of state without notice to her attorney or any hearing as mandated by Connecticut General Statutes sections 46b–129(r) and 17a–16(h).  Subsequently the petitioner filed a Motion to Reargue dated May 24, 2011 and an Addendum to Motion to Reargue dated June 2, 2011.   The respondent filed her Objection to Motion to Reargue dated June 7, 2011.

The petitioner's Motion, which was timely filed pursuant to Practice Book section 11–12, concedes that the department violated state law—specifically Connecticut General Statutes section 17a–16(h)—when it placed C.M. out of state without an administrative hearing.   That conclusion (and the consequent return of C.M. to the state) resolved the matter to the court's satisfaction.   However, the department wishes the matter revisited.

The department is, it seems, concerned that the court's decision has wider implications which may hamper its day to day business by requiring the department to obtain a physician's certificate for an involuntary commitment through the probate court every time the department is required to move a child to a different residential placement.   Since the court finds this to be an inappropriate and alarmist interpretation of its decision it granted the department's Motion and permitted reargument over C.M.'s objection.

I

The department claims that the court's decision requires it “to seek involuntary commitments through probate court in order to place an unwilling youth in a residential treatment facility” (Motion to Reargue—hereafter ‘Motion’—p. 1.)

The department urges an incorrect reading of this court's decision;  the court declines to adopt this inaccurate and inappropriate interpretation, which would implicate legislative provisions inapposite to the case of C.M.

Sections 17a–76 through section 17a–78 deal with the circumstances where a child may be committed to a mental hospital under a physician's certificate and provide safeguards for that process.   Section 17a–79 provides for a different process.   Section 17a–79(b) specifically refers to children in the custody of the department.²  The statute references ‘hospitalization of child for diagnosis or treatment of mental disorder’ and specifically refers to ‘hospital’ and ‘hospitalization.’   As such, residential facilities within the state not identified as ‘hospitals' would not normally trigger the requirements of section 17a–79.

It should be noted that in addressing the need for procedures to be followed under section 17a–79(b) the court was responding to C.M.'s secondary assertion, made in oral argument, that, in addition to being moved out of state without notice to her attorney (a point the department has conceded) she had also been hospitalized without her consent or the necessary notice to counsel.

It was not clear to the court at the Hearing on C.M.'s ‘Emergency Motion for In Court Review’ whether KidsPeace was functioning as a hospital so as to invoke the section 17a–79 procedural requirements.   The court heard that (1) the sole purpose of taking C.M. to KidsPeace was to obtain an assessment of C.M.'s mental state and treatment recommendations (see Decision on Emergency Motion—hereafter ‘Decision’—fn18) and (2) that KidsPeace has a psychiatric hospital as part of its services.   That hospital is located at Orefield, Pennsylvania—identified as the site to which C.M. was taken.   The court has now been provided (without objection by C.M.) with a letter/affidavit from Alicia Eby, identified as an employee of the organization stating that:

the KidsPeace Diagnostic Program is not an inpatient hospital.   It is considered a short-term residential setting that provides the children with 24–hour supervision, individual therapy, group therapy, educational services and recreational programming.   The clinical team works to stabilize clients, assess their clinical needs and then provides treatment recommendations.

That new evidence allays the court's concern that C.M. was ‘hospitalized’ so as to trigger the requirements imposed in section 17a–79(b).

A cautionary note should however, be sounded.   This response to the department's request for reargument of the issues underlying the court's decision merely restates the law.   The classification of a facility as a ‘hospital’ whether within the state or outside it would clearly trigger the protections set out in section 17a–79.   However, the fact that a facility is not formally classified a ‘hospital’ may not allow the department to ignore the protections afforded to a child by the statute if the sole reason a child is sent to a facility is for ‘diagnosis or treatment of a mental disorder.’ ³  Subjection of any person, whether child or adult, to involuntary psychiatric treatment is extraordinarily invasive and rightly attracts an enhanced degree of scrutiny.

It may be worth noting that the department appears to confuse the requirements and consequences of commitment under a physician's certificate (set out for the purposes of the department in Connecticut General Statutes sections 17a–76 through 17a–78) where clearly defined criteria and procedures are well established to protect the patient involuntarily committed as the result of a physician's certificate to a ‘hospital for mental illness of children’ as defined by General Statutes section 17a–75 ⁴ with the less clearly defined requirements of section 17a–79 where the placement is for ‘diagnosis and treatment’ absent a physician's certificate.   Section 17a–79 also speaks of any hospital and not solely in a ‘hospital for mental illness of children.’ ⁵  Nevertheless, the department dispenses with the safeguards set out in section 17a–79(b) at its peril if it decides to house a child at a facility which placement, notwithstanding its name, functions as a ‘hospital.’

WHEREFORE, while the court has granted reargument as requested by the department, no relief or modification of prior ruling is provided.   This court has not previously required, and now declines to adopt, any ruling that would require D.C.F. “to seek involuntary commitments through probate court in order to place an unwilling youth in a residential treatment facility” (Motion to Reargue—hereafter ‘Motion’—p. 1).

ESCHUCK, J.

FOOTNOTES

FN2. Sec. 17a–79.  (Formerly Sec. 17–205f.)   Hospitalization of child for diagnosis or treatment of mental disorder. (a) Except as provided in subsection (b) of this section, any hospital may admit any child for diagnosis or treatment of a mental disorder upon the written request of the child's parent.   A child fourteen years of age or over may be admitted under this section without consent of his or her parents if such child consents in writing, provided that the parents of such child, if any, shall be notified within five days of such admission that such child has been hospitalized under the provisions of this subsection.   If the whereabouts of such parents are unknown, then such child's nearest relative shall be so notified.   In the event that a child's parent or guardian requests in writing release of such child, or in the event a child age fourteen or older who has been admitted with his or her written consent requests in writing his or her release, the hospital shall release such child or commence commitment proceedings in accordance with sections 17a–76 and 17a–77 and the hospital may detain the child for five business days, in order to allow an application to be filed.   In the event such an application is filed, such hospitalization shall be continued for an additional period of time to allow such application to be heard, but in no event shall such hospitalization continue for more than fifteen days, or twenty-five days, if the matter has been transferred to the Superior Court, beyond the receipt of such application by the court.(b) No child in the custody of the Commissioner of Children and Families shall be admitted for diagnosis or treatment except in accordance with sections 17a–76 to 17a–78, inclusive, unless (1) the commissioner requests such admission, (2) legal counsel appointed by the superior court for juvenile matters or court of probate in accordance with section 17a–76 agrees, in writing, to such admission, and (3) the child, if fourteen years of age or over consents to such admission.   The parents or guardian of the person of such child, if any, shall be notified within five days of such admission that such child has been hospitalized under the provisions of this section.   If the whereabouts of such parents or guardian of the person is unknown, then the nearest relative of such child shall be notified.   In the event either parent or the guardian of the person of the child requests in writing the release of such child, the hospital shall release such child, unless the Commissioner of Children and Families commences commitment proceedings in accordance with sections 17a–76 and 17a–77.   The hospital may detain the child for five business days after receipt of the written request in order to allow an application to be filed.   If an application is filed, hospitalization shall be continued for an additional period of time to allow the application to be heard, but in no event shall hospitalization continue for more than fifteen days, or twenty-five days, if the matter has been transferred to the Superior Court, beyond the receipt of such application by the court..  FN2. Sec. 17a–79.  (Formerly Sec. 17–205f.)   Hospitalization of child for diagnosis or treatment of mental disorder. (a) Except as provided in subsection (b) of this section, any hospital may admit any child for diagnosis or treatment of a mental disorder upon the written request of the child's parent.   A child fourteen years of age or over may be admitted under this section without consent of his or her parents if such child consents in writing, provided that the parents of such child, if any, shall be notified within five days of such admission that such child has been hospitalized under the provisions of this subsection.   If the whereabouts of such parents are unknown, then such child's nearest relative shall be so notified.   In the event that a child's parent or guardian requests in writing release of such child, or in the event a child age fourteen or older who has been admitted with his or her written consent requests in writing his or her release, the hospital shall release such child or commence commitment proceedings in accordance with sections 17a–76 and 17a–77 and the hospital may detain the child for five business days, in order to allow an application to be filed.   In the event such an application is filed, such hospitalization shall be continued for an additional period of time to allow such application to be heard, but in no event shall such hospitalization continue for more than fifteen days, or twenty-five days, if the matter has been transferred to the Superior Court, beyond the receipt of such application by the court.(b) No child in the custody of the Commissioner of Children and Families shall be admitted for diagnosis or treatment except in accordance with sections 17a–76 to 17a–78, inclusive, unless (1) the commissioner requests such admission, (2) legal counsel appointed by the superior court for juvenile matters or court of probate in accordance with section 17a–76 agrees, in writing, to such admission, and (3) the child, if fourteen years of age or over consents to such admission.   The parents or guardian of the person of such child, if any, shall be notified within five days of such admission that such child has been hospitalized under the provisions of this section.   If the whereabouts of such parents or guardian of the person is unknown, then the nearest relative of such child shall be notified.   In the event either parent or the guardian of the person of the child requests in writing the release of such child, the hospital shall release such child, unless the Commissioner of Children and Families commences commitment proceedings in accordance with sections 17a–76 and 17a–77.   The hospital may detain the child for five business days after receipt of the written request in order to allow an application to be filed.   If an application is filed, hospitalization shall be continued for an additional period of time to allow the application to be heard, but in no event shall hospitalization continue for more than fifteen days, or twenty-five days, if the matter has been transferred to the Superior Court, beyond the receipt of such application by the court.

FN3. “If it quacks like a duck and waddles like a duck it is, in all probability, a duck—notwithstanding its given name.”.  FN3. “If it quacks like a duck and waddles like a duck it is, in all probability, a duck—notwithstanding its given name.”

FN4. Sec. 17a–75.  (Formerly Sec. 17–205b.)   Definitions.  For the purposes of sections 17a–75 to 17a–83, inclusive, the following terms shall have the following meanings:  “Business day” means Monday through Friday except when a legal holiday falls thereon;  “child” means any person less than sixteen years of age;  “court” means the Superior Court–Juvenile Matters or the Court of Probate, unless either court is specifically stated;  “hospital for mental illness of children” means any hospital, which provides, in whole or in part, diagnostic or treatment services for mental disorders of children, but shall not include any correctional institution of this state;  “mental disorder” means a mental or emotional condition which has substantial adverse effects on a child's ability to function so as to jeopardize his or her health, safety or welfare or that of others, and specifically excludes mental retardation;  “parent” means parent or legal guardian, including any guardian appointed under the provisions of subsection (i) of section 46b–129 or sections 45a–132, 45a–593 to 45a–597, inclusive, 45a–603 to 45a–622, inclusive, 45a–629 to 45a–638, inclusive, 45a–707 to 45a–709, inclusive, 45a–715 to 45a–718, inclusive, 45a–724 to 45a–737, inclusive, or 45a–743 to 45a–756, inclusive..  FN4. Sec. 17a–75.  (Formerly Sec. 17–205b.)   Definitions.  For the purposes of sections 17a–75 to 17a–83, inclusive, the following terms shall have the following meanings:  “Business day” means Monday through Friday except when a legal holiday falls thereon;  “child” means any person less than sixteen years of age;  “court” means the Superior Court–Juvenile Matters or the Court of Probate, unless either court is specifically stated;  “hospital for mental illness of children” means any hospital, which provides, in whole or in part, diagnostic or treatment services for mental disorders of children, but shall not include any correctional institution of this state;  “mental disorder” means a mental or emotional condition which has substantial adverse effects on a child's ability to function so as to jeopardize his or her health, safety or welfare or that of others, and specifically excludes mental retardation;  “parent” means parent or legal guardian, including any guardian appointed under the provisions of subsection (i) of section 46b–129 or sections 45a–132, 45a–593 to 45a–597, inclusive, 45a–603 to 45a–622, inclusive, 45a–629 to 45a–638, inclusive, 45a–707 to 45a–709, inclusive, 45a–715 to 45a–718, inclusive, 45a–724 to 45a–737, inclusive, or 45a–743 to 45a–756, inclusive.

FN5. Section 17a–75 purports to provide definitions for sections 17a–75 to 17a–83, inclusive.   However within those sections the Legislature has differentiated between the ‘hospital for mental illness of children’ (sec.17a–77(e) (et seq.) and a ‘general hospital.’ (sec 17a–77(c)) the lack of any qualifier before ‘hospital’ in section 17a–79(b) may suggest an intent to encompass a wider range of facilities..  FN5. Section 17a–75 purports to provide definitions for sections 17a–75 to 17a–83, inclusive.   However within those sections the Legislature has differentiated between the ‘hospital for mental illness of children’ (sec.17a–77(e) (et seq.) and a ‘general hospital.’ (sec 17a–77(c)) the lack of any qualifier before ‘hospital’ in section 17a–79(b) may suggest an intent to encompass a wider range of facilities.

Eschuk, Cara F., J.