IN RE: Luisianna G.R. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

This neglect and uncared for petition was filed July 18, 2012 on behalf of Luisianna G.R. (hereinafter “L.”) by her attorney pursuant to General Statutes § 46b–129(a).   The petitioner attorney alleges that L. was born on August 26, 1995, and as of July 16, 2012 was neglected for reasons other than being impoverished in that she had been abandoned, and uncared for in that she was homeless.   The petition names as the respondents L.'s father, to whom notice was given by publication in Santo Domingo, his last whereabouts being no more specifically known.   Notice was also given to Nancy R. Ms. R. had been appointed the legal guardian of L. on July 7, 2011 by the New London Regional Children's Probate Court (Greene, J.), with the consent of father.   Nancy R. remains the legal guardian of L. L's mother is deceased.   This court has jurisdiction.   Service of the petition was not made upon the commissioner of the department of children and families (“DCF” or “department”), but an agency representative appeared in court on the plea date along with an assistant attorney general.   On the plea date, the legal guardian appeared, was advised of her rights, and entered a denial.   The legal guardian sought no legal counsel.   DCF, by agreement, was given time to investigate the circumstances of the case and to decide whether to adopt the petition.   On November 20, 2012, the department declined to adopt the petition, but intervened for purposes of filing this motion to strike.

The motion challenges the legal sufficiency of the petition for two essential reasons.   First, the department asserts that L. is legally an adult;  and second that, if not an adult, L's guardianship rights were transferred to Nancy R. and there is no legally sufficient claim of neglected or uncared for status in her present circumstances.   For the second reason, the motion is granted.

As to the department's first referenced claim, it is correct that if L. was eighteen years old before any possible adjudication, this court lacks the statutory authority to adjudicate L. as neglected or uncared for.  In re Jose B., 303 Conn. 569, 34 A.3d 975 (2012).   The department has provided the court with several exhibits which indicate that L. was born on August 26, 1994, including the probate court decree transferring guardianship of L. to Nancy R. However, L. has filed a petition alleging that she was born on August 26, 1995.   For purposes of a motion to strike the moving party admits all well pleaded facts and if the facts provable in the complaint would support a cause of action, the motion must be denied.  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).   L. has claimed she is seventeen years old and attached what purports to be a corrected birth certificate confirming this.   For purposes of this motion, the court must accept her claim that she is seventeen, and thus this rationale for the motion to strike would be inadequate.

The motion to strike is granted, based upon the department's other argument.   L. has alleged neglect in that she has been abandoned, and uncared for in that she is homeless.   Her own statement of facts undermines these allegations.   She avers that her aunt Nancy R. has been her guardian since October 2010, having been appointed guardian of L. by the New London Regional Children's Probate Court.   L. further avers that she has lived with her aunt since that date.   Accepting her own allegations as true, L. was neither abandoned nor homeless as of July 16, 2012.   Her references to any acts or inactions of her father since the transfer of guardianship are irrelevant to these allegations.   L. is neither homeless nor abandoned.   There is no suggestion of either status during L.'s presumed minority, and the court can not base an adjudication upon any speculative facts which may occur after L. achieves legal adulthood.   Thus, this court has no statutory basis for finding L. neglected or uncared for.

Accordingly the motion to strike is granted.

BY THE COURT

John C. Driscoll, J.

Driscoll, John C., J.