Connecticut Department of Developmental Services v. New Haven Probate District (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 122)

This action is an appeal from a New Haven Probate Court decision rendered on April 1, 2010 regarding the Connecticut Department of Developmental Services' (DDS) application for the involuntary placement of H.L. in the care and custody of DDS pursuant to General Statutes § 17a–247.

The defendant, Norma Mendoza, was the Community Training Home (CTH) provider for H.L. for more than twenty-five years.   The defendant also served as legal guardian of H.L. On March 8, 2008, the Commissioner of DDS issued an Emergency Order, pursuant to § 17a–274(k) to remove H.L. from the defendant's CTH. H.L. was placed and continues to remain at the Arden House, a long-term care facility.   On or about March 9, 2008, DDS filed with the Probate Court of New Haven an Application for Involuntary Placement and removal of H.L. from the defendant's care.   A probate hearing followed.   On April 1, 2010, Judge John Keyes, Judge of New Haven Probate Court concluded that it was unable to find by clear and convincing evidence that defendant could no longer provide adequate care for H.L., nor could it conclude by clear and convincing evidence that placement with the plaintiff would provide the least restrictive environment available to meet H.L.'s rehabilitative needs.   The court therefore denied the plaintiff's Application for Involuntary Placement.   Judge Keyes stayed his order for thirty days until May 1, 2010.

Pursuant to General Statutes § 45a–185, plaintiff has appealed the order of the Probate Court denying its Application for Involuntary Placement.   On April 28, 2010, the plaintiff filed a Motion For Stay of the decision of the probate court, pending appeal.   On May 10, 2010, the court granted the stay for ninety days until August 10, 2010, pending appeal.   On August 28, 2010, the plaintiff again filed a Motion For Stay of the decision of the probate court pending resolution of this appeal.   On August 31, 2010 the court granted the stay pending resolution of this appeal.

On June 21, 2013, the defendant filed a motion for summary judgment and memorandum in support on grounds that the existing facts do not support the plaintiff's challenge to the Probate Court's order denying the plaintiff's Application for Involuntary Placement and removal of H.L. from the defendant's care.   On August 1, 2013, the plaintiff filed an objection and memorandum in support of its objection.   The plaintiff claims that summary judgment is not allowed in an appeal from probate court and, even if a motion for summary judgment is allowed, genuine issues of material fact exists as to whether the plaintiff's Application for Involuntary Placement should be granted.   The court heard oral argument on the motion on August 12, 2013.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.   In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist ․ The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden [of production] ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ․ The presence ․ of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.”  (Citation and internal quotation marks omitted.)   The Episcopal Church v. Gauss, 302 Conn. 408, 421–22;  28 A.3d 302 (2011).

The defendant, the DDS, makes essentially two arguments in opposition to the motion:  1) summary judgment is not allowed in an appeal from probate;  and 2) genuine issues of material fact exist as to whether the plaintiff's Application For Involuntary Placement should be granted.

Where the appeal is a trial de novo, the superior court's role is clear and well established.   As observed by our Supreme Court in Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988), “[t]he function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo.   Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.”

When confronted with the issue of whether a motion for summary judgment is proper in an appeal from an order or decree of a Probate Court, Judge Levin in In Re Palmer, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 074022946 (Oct. 7, 2010, Levin, J.) [50 Conn. L. Rptr. 739], concluded that it was not.   First in construing the language of § 17–44 which governs summary judgment motions, Judge Levin determined that “[t]he rules of statutory construction apply to the interpretation of the Practice Book. State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981).   The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case ․ When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case ․ In seeking to determine that meaning ․ [General Statutes] § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․ We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise ․

“In accordance with § 1–2z, we first turn to the relevant language of the rule of practice at issue ․ Practice Book § 17–44 provides that a party may move for summary judgment [i]n any action, except administrative appeals which are not enumerated in Section 14–7 ․

“In a general sense the word ‘action’ means the lawful demand of one's right in a court of justice;  and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides ․ While that definition may seem broad enough to include probate appeals, case law has held otherwise.

“The Supreme Court has held that [a]n appeal from a Probate Court to the Superior Court is not an ordinary civil action ․ When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate ․ In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court ․ The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo.”  (Citations omitted;  internal quotation marks omitted.)  In re Palmer, supra, Superior Court, judicial district of Fairfield at Bridgeport.

The plaintiff in Palmer, argued that the language in Practice Book § 10–76 renders probate appeals civil actions.   Judge Levin concluded that it did not.   Noting that “Practice Book § 10–76(a) provides:  ‘Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal, which upon motion shall be made reasonably specific, within ten days after the return day;  and pleadings shall thereafter follow in analogy to civil actions.’   This provision of the Practice Book is not recent vintage.   It is descended from Practice Book (1908), p. 207, Rules of the Superior Court § 13.   Ninety-five years ago, the Supreme Court, in Slattery v. Woodin, 90 Conn. 48, 96 A. 178 (1915), addressing that statutory ancestor, stated:  ‘The phrase “in analogy to civil actions” expresses the proper status of an appeal from probate, as a special proceeding authorized by statute, but not a civil action.   Independently of the language of the rule, appeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction.   It tries the questions presented to it de novo, but in so doing it is not exercising the general jurisdiction conferred upon it by the statutes on which the appellants rely.   It is exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate.   It was solely by force of this statute that the appellants were able to reach the Superior Court at all;  and when reached by that path the Superior Court is a tribunal which has no greater powers than those of the Court of Probate.’   The Slattery v. Woodin court squarely held that ‘[a]ppeals from probate are not “actions” or “civil causes or actions, between party and party.”  ‘ “ (Citations omitted);  In re Palmer, supra, Superior Court, judicial district of Fairfield at Bridgeport.

In further concluding that the language of Practice Book § 10–76 does not render probate appeals civil actions within the meaning of § 17–44, Judge Levin looked to the language of Practice Book § 13–2 noting that “it is a rule of construction of the Practice Book that no word or phrase is to be treated as superfluous.  Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 424, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990).   Thus, it is telling that Practice Book § 13–2 defining the scope of discovery, provides:  ‘In any civil action, in any probate appeal, or in any administrative appeal where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain ․ discovery of information ․’ (Emphasis added.)   See also Practice Book §§ 13–6, 13–9, 13–11, 13–26.   If a probate appeal inhered in the word ‘action’ in Practice Book § 17–44, as the plaintiff maintains, it would inhere in the same word in § 13–2 and it would have been unnecessary for the drafters to expressly mention probate appeals in the latter section.   That they did is strong evidence that a probate appeal is not an action.  ‘The legislature's use of words to itemize the situations that bring a statute into play [i.e., in Practice Book § 13–2] connotes the legislative intent to exclude that which is not included [in Practice Book § 17–44].’   “ (Citations omitted.)  In re Palmer, supra, Superior Court, judicial district of Fairfield at Bridgeport.   Judge Rittenband in In Re Banning v. Probate Appeal, Superior Court Judicial District of Hartford at Hartford, Docket No. CV 08–4036369–S (Apr. 21, 2010) [49 Conn. L. Rptr. 695], reached a similar result.   However, Judge Elgo in Ackerman v. Sobol, Superior Court Judicial District of Hartford at Hartford, Docket No. CV07–4027616S (Elgo, J., Nov. 19, 2007), reached a different conclusion relying on the language in Practice Book § 10–76.

This court agrees with the well reasoned opinion of Judge Levin in Palmer in which he concludes that appeals from probate are not “actions” within the meaning of Practice Book § 17–44, which allows for the filing of summary judgment in “any action.” ¹

CONCLUSION

Accordingly, for the foregoing reasons, the defendant's motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. Even if the court were to consider the second ground of the plaintiff's objection, the motion must still be denied.   The issue on this appeal is not whether the Probate Court erred in entering its April 1, 2010 decision, but whether the plaintiff's March 9, 2008, Application for Involuntary Placement of H.L. in the care and custody of DDS and removal of H.L. from care and custody of the defendant should be granted.  “The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo ․ Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.”  (Internal quotation marks and citations omitted.)  Kerin v. Stangle, 209 Conn. 260, 264 (1988).   The court agrees with the plaintiff that the defendant has failed to demonstrate that there are no issues of material fact as to whether the plaintiff's Application for Involuntary Placement of H.L. in the care and custody of DDS should be granted, thus summary judgment would be denied on this ground..  FN1. Even if the court were to consider the second ground of the plaintiff's objection, the motion must still be denied.   The issue on this appeal is not whether the Probate Court erred in entering its April 1, 2010 decision, but whether the plaintiff's March 9, 2008, Application for Involuntary Placement of H.L. in the care and custody of DDS and removal of H.L. from care and custody of the defendant should be granted.  “The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo ․ Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.”  (Internal quotation marks and citations omitted.)  Kerin v. Stangle, 209 Conn. 260, 264 (1988).   The court agrees with the plaintiff that the defendant has failed to demonstrate that there are no issues of material fact as to whether the plaintiff's Application for Involuntary Placement of H.L. in the care and custody of DDS should be granted, thus summary judgment would be denied on this ground.

Wilson, Robin L., J.