Traci H. et al.1 v. DCF (2011)

MEMORANDUM OF DECISION

The matter before the court arises from a writ of habeas corpus and temporary injunction brought by the foster parents of two-year-old Paityn C., pursuant to § 52–466(f).  This statute provides as follows:

(f) A foster parent or an approved adoptive parent shall have standing to make application for a writ of habeas corpus regarding the custody of a child currently or recently in his care for a continuous period of not less than ninety days in the case of a child under three years of age at the time of such application and not less than one hundred eighty days in the case of any other child.

Paityn C. was born on August 20, 2009.   For reasons not here relevant, the child was removed from the parents on February 3, 2010, and placed in foster care.   The child was subsequently found to be neglected and committed to the care of DCF. Later, DCF concluded that the biological parents were not making sufficient progress toward reunification with the child and the agency filed an action to terminate the parental rights of the biological parents Tiffany B. and William C., on February 10, 2011.  (In re Paityn C., K09 CP10–012155–A.)   That case is presently pending before this court, as well.

At some point DCF learned that there may be grandparents in Florida who might be a placement resource for the child.   On May 7, 2010, an Interstate Compact on the Placement of Children (ICPC) study was ordered by the court (Driscoll, J.).   On July 15, 2010, the child was placed by DCF in her current, legal risk, pre-adoptive foster home with the present petitioners, Traci and Todd H.

Before the court are both contested cases, the termination of parental rights case and the foster parents' request for permanent injunction in the habeas corpus case.   On October 12, 2011, this court ordered the parties to file simultaneous briefs on the habeas corpus case, to be filed no later than December 12, 2011.   The court also scheduled the two cases for trial beginning on December 22, 2011, and subsequent dates as necessary.

The various pleadings and briefs have been filed.   They allege that between July 2010 and the present time, the child has bonded with the foster family and Paityn is seemingly well adjusted.   On May 4, 2011, nearly a year to the day after it was ordered, the Florida ICPC study was filed in Connecticut.   That study found that the grandparents in Florida were approved for possible placement of Paityn.

The petition for termination of parental rights case had been transferred to Child Protection Session in Middletown for a contested hearing.   On June 16, 2011, at what may have been a case management conference prior to trial, the assistant attorney general representing DCF, the biological parents and the child's attorney, reached an agreement that Paityn would be placed in Florida with the maternal grandparents.   An agreement was reached also that they would return to court on or about July 12, 2011, for the court to approve the out of state placement of the child.   The foster parents do not have standing and were not party to these discussions.   It is alleged by the petitioners, that they knew nothing of this proposed June 16th agreement, but discovered it accidentally.

On July 1, 2011, DCF sent the foster parents a DCF Form 2028 letter advising them of the intent to remove Paityn from their care on August 3, 2011.   The form letter also advised the foster parents of the possible right to seek an administrative hearing to contest the removal under certain Connecticut State Agency Regulations provided the child had been in their continuous care for one year.   The child had been in their care since July 15, 2010, two weeks short of the required one year.   The letter does not mention the foster parents' right to be heard in the Superior Court on the child's best interest under § 46b–129(o) ² and Practice Book § 35a–5.³

During this same time frame, the assistant attorney general filed a document with the court on July 14, 2011, seeking to have the court approve the agreement to send the child to Florida without a hearing (ex parte) and, without the foster parents having received notice of the motion.   If granted, the attorney general's motion would have likely led the court into error and preempted the foster parents from having the right to be heard and to comment on the best interests of the child (§ 46b–129(o)).⁴  Fortunately, for unknown reasons, the motion was not acted on by the court, but remains in the file.

Having received the impersonal form letter from DCF, the foster parents secured private counsel and on July 8, 2011, the foster parents filed a document entitled FOSTER PARENTS' NOTICE OF INTENT TO BE HEARD AND TO COMMENT AS TO BEST INTERESTS.   The motion sought a hearing pursuant to § 46b–129(o) regarding the proposed plan of removal.

At that point, in the termination of parental rights case, In re Paityn C., the case was in a precise posture for a judicial determination as to whether removal from the foster parents was in the best interests of the child.   The parents were represented by counsel, the child was represented by counsel, and the foster parents were entitled to be heard on the best interests of the child.   Everything was ready for an expeditious resolution of the issues.   But that did not happen.

Six days later on July 14, 2011, the foster parents initiated this separate action by means of a writ of habeas corpus seeking an injunction to prevent the removal of Paityn from their care.   The court (Mack, J.T.R.) granted the temporary injunction and at a subsequent date consolidated the two cases and referred the case to this court for resolution.

All parties have had the opportunity to file briefs regarding the application of the habeas corpus statute to this case.   The brief of the foster parents supports the use of § 52–466(f) as the proper vehicle for resolution of this case.   The brief filed on behalf of the respondent, Commissioner, concludes that the statute was formulated “to allow those entrusted with the care of children by the Department to challenge placement decisions by the Department.”   Further, “[T]he legislative history and case law both acknowledge the complication of considering a habeas corpus petition before parental rights have been terminated, yet neither the legislature nor the courts have acted to require termination of parental rights as a condition precedent to filing under § 52–466(f).”  The Commissioner concludes that as the law stands these foster parents meet the requirements of the statute.   This court disagrees.

As the Commissioner's brief suggests, there is a growing body of case law regarding § 52–466(f).  In all of these cases, the courts have cultivated the fields of legislative history.   This, in itself, suggests that the section is not free from ambiguity.   This court could not review and analyze the legislative history any better than recently done by Judge Peter Brown in the case of In re Joshua S., Superior Court for Juvenile Matters, New Haven, Docket Number CP10–019037 (February 18, 2011, Brown, J.).

The other cases which review the legislative history are these:

Nye v. Marcus, 198 Conn. 138 (1985).

Orsi v. Senatore 230 Conn. 459 (1994).

Alfano v. Richardson, 1995 CT.Sup. 9802 (Brenneman, J.) [15 Conn. L. Rptr. 85].

In re Kristy L., 47 Conn.Sup. 273 (1999, Swienton, J.) [30 Conn. L. Rptr. 397].

In re Nicholas B., Superior Court, Child Protection Session at Middletown Docket Number CP08–017705 (Bentivegna, J.).

The court commends all counsel for their helpful briefs, in particular the brief of the attorney for the minor child, was thorough, complete and compelling.   All parties agree that the present habeas corpus statute was crafted to meet the inability of foster parents to obtain a judicial review of the agency's unilateral decision to remove the child in their care and place the child with another family for adoption without judicial approval.   This was the right that was denied foster parents in the matter of Nye v. Marcus, 198 Conn. 138 (1985).

The facts of the Nye case are these.   A minor child was removed from the biological parents at birth.   The child was placed with foster parents, the Nyes. The child, Jennifer, resided with Nyes from August of 1984, until after the conclusion of a termination of parental rights case on December 11, 1984.   At that point, the termination case was concluded and the child protection agency, then known as the department of children and youth services (DCYS) was the statutory parent for Jennifer, the parents' legal rights having been terminated.   In February 1985 DCYS notified the foster parents that Jennifer was to be removed from their care and placed with another family for adoption.   There appeared to be no recourse to the foster parents to seek a judicial determination of the child's best interest.

On March 6, 1985, the Nyes filed an application for writ of habeas corpus, together with a complaint and application for a temporary injunction.   The trial court, (Noren, J.) granted the temporary injunction enjoining DCYS from removing the child.

Later in that same month the court granted a motion to quash the habeas petition, concluding the court had no jurisdiction.   It is of paramount importance to note that the habeas corpus statute at the time, § 52–466, did not contain sub-section (f).  As a consequence of dissolving the injunction, DCYS removed the child on March 22, 1985, and placed the child with the proposed adoptive parents.   The Nyes appealed the decision to the Supreme Court.

The Supreme Court (Callahan J.) concluded, for a unanimous court, that the foster parents did not have a liberty interest and “their emotional relationship with the child, which was acquired through the temporary foster placement, is too tenuous a basis to afford standing to institute a habeas corpus proceeding against the statutory parent and legal guardian.”  Nye at 144.⁵

All counsel in the present case agree that the legislative history regarding the present statute, was enacted in response to Nye v. Marcus.   The petitioner argues that “[T]he legislature sought to reverse course and ensure foster parents could seek judicial review of removal decisions.”  (Petitioner's brief p. 5.) The parties do not agree whether the statute implicitly applies only in cases where the parental rights have been terminated.

A review of the aforementioned briefs and cases, and in particular the legislative history so articulately stated by Judge Brown, leads this court to the following conclusions:

1) A great deal has changed regarding children and foster parents appearing before a Connecticut court since § 52–466(f) was passed in 1988.   The most significant changes were resultant of the federal laws embodied in The Adoption and Safe Families Act (ASFA), 42 U.S.C. §§ 620–679, Titles IV–B and IV–E of the Social Security Act and its corresponding regulations.⁶  This law and regulations caused wholesale changes to Connecticut's child protection laws and procedures.   Counsel are now appointed for children in all cases before the juvenile courts.  Practice Book § 32a–1.   Unlike 1988, foster parents have a federal right, as well as state rights, to notice and an opportunity to be heard at any hearing on the child.   They may attend administrative hearings, permanency plan hearings and all hearings in court pre- and post- termination.   The states are not required under federal law, nor does Connecticut, to grant foster parents the right to full party status.

2) § 52–466(f) is neither clear nor unambiguous and a strict reading and application of the statute would yield unworkable, and perhaps unconstitutional results as applied.   For example, the petition in this case was served on the commissioner of DCF only. § 52–466(c) requires the writ to be directed “unto the hands of the person who has custody of the body of the person who is directed to be presented upon the writ.”   Since there is no provision in the statute for notice to the biological parents, who were non-custodial and whose rights had not been terminated, this would appear to be a fatal due process flaw.   The parents in this case were not served with process.   The statute does not require notice to the biological parents.  “Even where family relationships are strained, parents are entitled to fair procedures.”   Justice Blackmun in Sandosky v. Kramer, 455 U.S. 745, 759 (1982).

3) The briefs of all counsel and the legislative history all agree that the wrong sought to be remedied by this legislation was to permit a foster parent to obtain judicial review of placement decisions made by a child protection agency when the natural parent's rights had been terminated.   Any other reading of the statute produces unworkable and unintended results as here.  “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.”   Abreu v. Leone, 120 Conn.App. 390, 411, cert. denied 297 Conn. 926 (2010).

4) Subsequent legislation has more completely and specifically addressed foster parents' rights whether or not parental rights have been terminated.   Those more recent legislative actions have reduced and clarified the rights of persons precisely in the position of these petitioners.  (See specifically, § 46b–129(o) and Practice Book § 35a–5.)

5) To allow the application of § 52–466(f) to cases already pending before the Superior Court is duplicative and confers rights and status (standing) on foster parents that is inconsistent with subsequent legislation and due process.   There is nothing in the legislative history that suggests the legislation was intended to confer an additional remedy to foster parents.   The only scenario that is consistent with a sole remedy is to read the statute as applicable only to cases where the natural parents right's have been terminated and there is no proceeding pending in any other court affecting the custody of the child.

6) Nothing in the legislative history suggests that this bill was intended to provide a review or reconsideration of judicial decisions.

7) The issues raised in this habeas proceeding were already squarely before the court.   Indeed, the petitioners in this action had already previously filed a request to be heard pursuant to § 46b–129(o).   The only effective result of the injunction in this case was to delay adjudication of an issue squarely before the court and ripe for adjudication.

8) To read the statute as limited to those cases where the parental rights have been previously terminated and where there is no other legal remedy available, as there is here, is to validate the statute and effectuate the legislative purpose.⁷

For those reasons, this court finds that the injunction was improvidently granted and the writ improperly sought.   This court dismisses the writ and dissolves the temporary injunction.⁸

Foley, J.T.R.

FOOTNOTES

FN2. (o) A foster parent, prospective adoptive parent or relative caregiver shall receive notice and have the right to be heard for the purposes of this section in Superior Court in any proceeding concerning a foster child living with such foster parent, prospective adoptive parent or relative caregiver.   A foster parent, prospective adoptive parent or relative caregiver who has cared for a child or youth shall have the right to be heard and comment on the best interests of such child or youth in any proceeding under this section which is brought not more than one year after the last day the foster parent, prospective adoptive parent or relative caregiver provided such care..  FN2. (o) A foster parent, prospective adoptive parent or relative caregiver shall receive notice and have the right to be heard for the purposes of this section in Superior Court in any proceeding concerning a foster child living with such foster parent, prospective adoptive parent or relative caregiver.   A foster parent, prospective adoptive parent or relative caregiver who has cared for a child or youth shall have the right to be heard and comment on the best interests of such child or youth in any proceeding under this section which is brought not more than one year after the last day the foster parent, prospective adoptive parent or relative caregiver provided such care.

FN3. Sec. 35a–5.   Notice and Right to Be Heard(a) Any foster parent, prospective adoptive parent or relative caregiver shall be notified of and have a right to be heard in any proceeding held concerning a child or youth living with such foster parent, prospective adoptive parent or relative caregiver.   The commissioner of the department of children and families shall provide written notice of all court proceedings concerning any child or youth to any such foster parent, prospective adoptive parent or relative caregiver of such child or youth.   Records of such notice shall be kept by the commissioner of the department of children and families and information about notice given in each case provided to the court..  FN3. Sec. 35a–5.   Notice and Right to Be Heard(a) Any foster parent, prospective adoptive parent or relative caregiver shall be notified of and have a right to be heard in any proceeding held concerning a child or youth living with such foster parent, prospective adoptive parent or relative caregiver.   The commissioner of the department of children and families shall provide written notice of all court proceedings concerning any child or youth to any such foster parent, prospective adoptive parent or relative caregiver of such child or youth.   Records of such notice shall be kept by the commissioner of the department of children and families and information about notice given in each case provided to the court.

FN4. The motion entitled:  “EX PARTE MOTION FOR OUT OF STATE PLACEMENT BY AGREEMENT OF THE PARTIES,” sought to have the judge sign the motion ex parte, without notice or participation by the foster parents.   Certification of service did not include the foster parents.   The motion was marked for no oral argument or testimony..  FN4. The motion entitled:  “EX PARTE MOTION FOR OUT OF STATE PLACEMENT BY AGREEMENT OF THE PARTIES,” sought to have the judge sign the motion ex parte, without notice or participation by the foster parents.   Certification of service did not include the foster parents.   The motion was marked for no oral argument or testimony.

FN5. The expeditious decision of the Supreme Court was rendered on December 24, 1985, within the same year as the underlying action..  FN5. The expeditious decision of the Supreme Court was rendered on December 24, 1985, within the same year as the underlying action.

FN6. Final Rule:  Title IV–E Foster Care Eligibility Reviews & Child & Family Services State Plan Reviews, 65 Fed.Reg. 4020–4093 (January 25, 2000);  and are now codified at 45 C.F.R. §§ 1355, 1356 and 1357..  FN6. Final Rule:  Title IV–E Foster Care Eligibility Reviews & Child & Family Services State Plan Reviews, 65 Fed.Reg. 4020–4093 (January 25, 2000);  and are now codified at 45 C.F.R. §§ 1355, 1356 and 1357.

FN7. In Doe v. Doe, 163 Conn. 340, 342–43 (1972), the Supreme Court in noting that habeas corpus in custody matters was affording essentially equitable relief, noted:“The primary purpose of habeas corpus in matters relating to the custody of children is to furnish a means by which the Superior Court may determine what is best for the welfare of the child.  Howarth v. Northcott, 152 Conn. 460, 464, 208 A.2d 540;  Baram v. Schwartz, 151 Conn. 315, 318, 197 A.2d 334;  Adamsen v. Adamsen, supra, 178.   The child is in the position of a ward of the state.  Howarth v. Northcott, supra;  Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504.   The jurisdiction exercised by the court rests in its inherent equitable powers and exerts the force of the state, as parens patriae, for the protection of its infant ward.  General Statutes 52–466;  Howarth v. Northcott, supra;  LaBella v. LaBella, 134 Conn. 312, 316, 57 A.2d 627.”.  FN7. In Doe v. Doe, 163 Conn. 340, 342–43 (1972), the Supreme Court in noting that habeas corpus in custody matters was affording essentially equitable relief, noted:“The primary purpose of habeas corpus in matters relating to the custody of children is to furnish a means by which the Superior Court may determine what is best for the welfare of the child.  Howarth v. Northcott, 152 Conn. 460, 464, 208 A.2d 540;  Baram v. Schwartz, 151 Conn. 315, 318, 197 A.2d 334;  Adamsen v. Adamsen, supra, 178.   The child is in the position of a ward of the state.  Howarth v. Northcott, supra;  Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504.   The jurisdiction exercised by the court rests in its inherent equitable powers and exerts the force of the state, as parens patriae, for the protection of its infant ward.  General Statutes 52–466;  Howarth v. Northcott, supra;  LaBella v. LaBella, 134 Conn. 312, 316, 57 A.2d 627.”

FN8. The decision is released prior to the court hearing on December 22, 2011, to obviate any unnecessary travel of witnesses and to narrow the unresolved issues..  FN8. The decision is released prior to the court hearing on December 22, 2011, to obviate any unnecessary travel of witnesses and to narrow the unresolved issues.

Foley, Francis J., S.J.