Commissioner of Social Services (Yanli Tang) v. David Watrous (2014)

MEMORANDUM OF DECISION RE COMMISSIONER'S MOTIONS AND APPEAL FROM THE FAMILY SUPPORT MAGISTRATE

This case comes before the court from the Family Support Docket.   After a series of events dating back to 2010, the Commissioner filed a motion (# 118) on February 21, 2013 seeking the court to compel Yanli Tang to submit herself and her minor child to genetic testing pursuant to Connecticut General Statutes (C.G.S.) § 46b–169.   Ms. Tang filed a Motion to Strike this pleading (# 119.01) on March 20, 2013.   The Family Support Magistrate has not yet decided these issues.

However, on October 10, 2013 pursuant to C.G.S. § 46b–231(n) the Commissioner appealed certain of the Magistrate's orders (# 125).   In his Petition (# 126) filed the next day, the Commissioner made three claims of error:  first, that the Magistrate dismissed a previously appointed Guardian ad Litem (GAL);  second, that she improperly construed the self-represented Ms. Tang's “brief” as a Motion to Reconsider and finally, that the Magistrate marked a scheduled hearing “off” and ordered the parties to attend a pretrial instead.   The Commissioner claims that these sua sponte actions of the Magistrate were arbitrary, capricious, an abuse of discretion, beyond her legal authority, affected by error of law and clearly erroneous.

On October 11, 2013, the Commissioner filed a Motion For Order (# 127) asking the court to compel the Family Support Magistrate to answer a series of questions pertaining to this case, stating that answers to these questions were necessary to decide the above-noted appeal.

The Commissioner through the Assistant Attorney General (AAG) appeared on November 4, 2013 and asked this court to “take the papers” on all pending motions.   No other party appeared that day.

FACTUAL FINDINGS

The court finds all facts by a preponderance of the evidence having reviewed and applied all applicable statutes and having given appropriate weight to all testimony and evidence.   The court takes judicial notice of the extensive court file that included transcripts of sworn testimony before the Magistrate.   The court finds that no additional evidence, argument or briefs are necessary to decide these matters.  C.G.S. § 46b–231(n)(6).

Yanli Tang applied for Temporary Family Assistance and HUSKY for herself and her son on or about August 9, 2010.   See State's Exhibit E (6/29/12).   The state denied her any benefits when she declined to cooperate with the establishment of paternity for her son.   Ms. Tang never received any form of direct state assistance.   The child, however, did qualify for and receive HUSKY benefits for a period of time.

Ms. Tang named the defendant, David Watrous, as the child's father, and the state filed a Paternity Petition against him on February 10, 2012.   He sought genetic testing per C.G.S. § 46b–168.   On March 30, 2012 the Magistrate granted his motion.   Ms. Tang was not present, but at the next hearing on April 27, 2012, she declined to participate in genetic testing.   She also refused to make the child available for such testing.   The court ordered the appointment of a GAL to determine the child's best interests.   The court further ordered that the process of genetic testing was stayed ¹ so that the Commissioner could research and explain the jurisdictional requirements for the paternity petition.

At a hearing in May 2012 the Commissioner argued that C.G.S. § 46b–169 ² gave the magistrate authority to compel Ms. Tang and her son to participate in the establishment of the child's paternity through genetic testing.   The magistrate ordered briefs on the issue and continued the file to June 29, 2012;  then August 17, 2012;  then September 21, 2012;  then November 16, 2012;  and finally to January 25, 2013.   The Magistrate cited the plain language of 46b–169 which gives authority to a “judge of the Superior Court”—not a magistrate.

The Commissioner then moved the Superior Court, Nazzaro, J., to compel Ms. Tang's cooperation (# 118).   On March 11, 2013 Judge Nazzaro directed a Motion for Advice (# 119) containing questions to the Magistrate essentially seeking articulation of her actions and decisions to date so that the court could fully consider the Commissioner's Motion to Compel.   The Magistrate issued a “Response to Judge Nazzaro” (# 119.02) on March 22, 2013 in relevant part as follows:

(A) Did the Honorable Magistrate enter an order on January 25, 2013 ordering the parties to submit to genetic testing?

On January 25, 2013, this court stated it was “going to terminate the order that I entered ․ that she did not have to get the genetic testing and at that time—that she didn't have to do the DNA testing at that time.   Now, by clarification that simply puts everyone, all the parties, in the same place as they were when I entered the order back in the initial court date, I believe it was, granted his motion for genetic testing, use the language I always use, as provided by General Statutes [§ ]46b–168, [Ms. Tang] was not here when that was done.   By terminating the order it was more of a holding pattern.   I'm leaving the parties in the place that they were in when the initial order was entered and that's all.”  (January 25, 2013 Transcript p. 8.) Basically, this court stayed the order for genetic testing until all the legal issues were resolved including the state's authority to bring the present action in the magistrate court and request that the magistrate compel Ms. Tang to comply, the guardian ad litem's position on the best interest of the child and Ms. Tang's motion to reconsider its order of genetic testing.   Although this court has the authority to grant a motion for genetic testing, General Statutes § 46b–169 does not give this court the authority to compel a mother to comply.

(B) Is there any pleading, document pending in front of the Honorable Magistrate which the magistrate interprets to be in the vein of a motion to reconsider any ruling by the magistrate on January 25.

Yes, there is a pleading pending in front of this court which is being considered to be a motion for reconsideration.   At a hearing on January 25, 2013 Ms. Tang filed her “Brief for Yanli Tang in Opposition” and the state argued that there was no motion before the court and, therefore, the court could not consider the brief.   This court stated that it was going to consider Ms. Tang's brief in opposition to be a motion for reconsideration of the issue of whether the state, under the facts of this case, has the right to bring a paternity action.  (January 25, 2013 Transcript p. 24.)   At this same hearing, the assistant attorney general indicated that she was going to speak with her superiors to determine what the next step should be.   On February 15, 2013 another assistant attorney general appeared and informed the court that it was going to proceed with the present paternity action and Ms. Tang requested the undersigned consider her “Brief for Yanli Tang in Opposition.”   This court advised all the parties that it was going to consider the brief to be a motion for reconsideration and that the matter would be marked over to March 22, 2013 at which time the court would determine if it was going to reconsider its granting of the defendant's March 30, 2012 motion for genetic testing.   The court also duly noted the state's objection.   Because the undersigned is unavailable for the March 22, 2013 hearing, it has been rescheduled to May 17, 2013 at which point the court will decide whether it is going to hear the motion for reconsideration.

(C) The above requested information is needed inasmuch as the State of Connecticut has a pending motion to compel compliance with the magistrate's prior order regarding genetic testing.

It is respectfully suggested that the state's motion to compel, which is presently before the Honorable John J. Nazzaro, should not be heard until this court rules on whether it will hear Ms. Tang's motion to reconsider its order of genetic testing originally rendered on March 30, 2012.

(D) The hearing on the motion to compel has been continued for hearing two weeks on March 25.

It is respectfully suggested that the hearing on the state's motion to compel should not be scheduled until after this court decides if it is going to hear Ms. Tang's motion to reconsider.   If the court decides to hear Ms. Tang's motion for reconsideration, the state may need time to respond and this court will give the state the opportunity to file a reply brief should that be requested.   This court, if it decides to reconsider its March 30, 2012 order granting the defendant's motion for genetic testing, the court will then schedule argument.

Judge Nazzaro took no further action after the Magistrate's Response, but this court finds that the Magistrate initially granted the Commissioner's motion for genetic testing;  that she stayed this process to allow time to untangle certain jurisdictional issues and that she lifted her “stay” on January 25, 2013.   The self-represented Ms. Tang filed a pleading with the Magistrate's court entitled “Brief for Yanli Tang in Opposition” on January 25, 2013.   Over objection from the Assistant Attorney General (AAG), the court construed this pleading as a motion to reconsider the commissioner's ability to bring a paternity action under the facts and circumstances of this case.   The case file reflects that this “Reconsideration” has been pending since January 25, 2013.   The magistrate has not decided the reconsideration.³

APPLICABLE LAW, DISCUSSION and FURTHER FINDINGS

Reconsideration

Appeals from decisions of the Family Support Magistrate are heard by the Superior Court.  C.G.S. § 46b–231(n).  Practice Book § 60–2 gives supervisory control over lower courts to “the court having appellate jurisdiction.”   It is necessary in this matter for the lower court, here the Magistrate, to “complete or perfect the record for a proper presentation of an appeal.”  Tough v. Ives, 159 Conn. 605, 607 (1970).   In its supervisory capacity this court remands the case to the Magistrate for her to complete her reconsideration of the issues presented by the Commissioner and Ms. Tang and issue a decision forthwith.

Appeal From the Decision of the Magistrate

The AAG appealed actions of the Magistrate to the Superior Court pursuant to C.G.S. § 46b–231(n) and Practice Book § 25a–29.   The AAG asserts that the court, on its own motion, terminated the appointment of the GAL, did not give notice to the parties or allow evidence or argument to be offered by them.   The AAG challenges the Magistrate's authority to construe the self-represented party's January 25, 2013 “brief” as a motion to reconsider and her cancellation of a scheduled hearing on September 27, 2013.   The AAG characterizes the Magistrate's actions as arbitrary and capricious, an abuse of discretion, in excess of her authority, affected by error of law and clearly erroneous in light of the evidence.

The court disagrees.

The court extensively reviewed the entire record of this file, including transcripts of the parties' appearances before the Magistrate.   The court notes that the Magistrate appointed Attorney Kelly Babbitt as GAL for the child on April 27, 2012 and later appointed Attorney Tracie Molinaro as Attorney for the Minor Child (AMC) on December 21, 2012.   The Magistrate's order of September 27, 2013 reflects that the matters originally scheduled for that day would not proceed;  that Attorney Babbitt's appointment as GAL was terminated and that the case had been continued to a later date for a pretrial with Judge Bishop.

Family Support Magistrates have all the powers of a Superior Court Judge in particular matters, like the establishment paternity in the instant case.   C.G.S. § 46b–231(m)(1)–(13).   They are subject to the rules and regulations of the Superior Court.  C.G.S. § 46b–231(l).

Dismissing the Guardian ad Litem

C.G.S. § 46b–54 allows the court—and therefore, the Magistrate—to appoint counsel for the minor child, notably on its own motion “so long as the court deems such representation to be in the best interests of the child.”  Id.

The duties of the guardian ad litem ․ are contextually specific to the case at hand, and the scope of those duties should be set by the trial court judge and communicated to the GAL. Because those duties may subsume those traditionally performed by counsel when counsel is the child's sole representative;  see General Statutes § 46b–54(c);  counsel's duties must be similarly articulated by the court.  In Re Tayquon H., 76 Conn.App. 693, 708 (2003).

“A guardian ad litem ․ is always subject to the supervision and control of the court, and he may act only in accordance with the instructions of the court.”   Id., fn.19, citing 1943 C.J.S. 609, Infants § 234 (1978).

“The trial court is in the best position to evaluate the child's need for representation as the case and the evidence unfold.”  Schult v. Schult, 241 Conn. 783, 780–81 (1997).

The Magistrate was surely aware of the “blended role” either the AMC or the GAL performs when only one person is appointed in the best interests of a child.  In Re Tayquon, supra;  Carrubba v. Moskowitz, 274 Conn. 533 (2005).   The court notes the dialogue between the Magistrate, the AAG, the GAL and the AMC on January 25, 2013.   Transcript of Hearing, January 25, 2013, pp. 1–6.   Clearly, there was concern over the coordination and logistics between the GAL, the AMC, Ms. Tang and the child.   The GAL had never met the child.   The AMC had only limited contact with him.   The Magistrate's concern for the best interests of the child in having to deal with two lawyers—one of whom was a stranger to him—cannot be discounted.   The AMC also expressed her opinion to the Magistrate that direct input from the child was neither needed nor desirable because the issue before the court was one of law rather than fact.

The Magistrate may well have reasonably concluded that having two lawyers representing the child on what was mainly an issue of law was no longer in the best interests of the child.   Opining on a matter of law or advancing a particular view of that law would be more the province of the AMC, not the GAL per Tayquon and Carrubba.   In light of these findings, the court cannot conclude that the dismissal of the GAL was arbitrary, capricious, an abuse of discretion, in error of law or beyond her authority.   The Magistrate acted pursuant to her authority under C.G.S. § 46b–54 to remove the GAL on her own motion as the statute allows.

Marking the Case “Off” and Assigning It for Pretrial

The Magistrate controls her own docket.  P.B. §§ 14–11 through 14–14.   She may have reasonably concluded that the informality of a pretrial settlement conference would promote the best interests of the child in this case rather than a contentious, confused court hearing with a self-represented party.   This court, again, cannot conclude that the Magistrate's decision to cancel the September 27, 2013 hearing and order the parties to pre-try the issues with Judge Bishop was in any way arbitrary, capricious, an abuse of discretion, in error of law or beyond her authority.

Construing The Self–Represented Party's Filing as a Motion to Reconsider

The AAG assigns error to the Magistrate's construing the self-represented mother's “Brief for Yanli Tang in Opposition” (# 115) as a Motion for Reconsideration of the court's order for genetic testing.   Ms. Tang's “brief” controverts the right of the state to conduct genetic testing under the circumstances of this file in a number of ways.   The court notes that Ms. Tang was not present before the Magistrate when the original orders entered.   See, Court Order—Family Support Magistrate dated 03/30/12 (# 103).   On the next court date when she was present, she clearly objected to the court's prior actions.   See, Response to Judge Nazzaro's March 11, 2013 Motion for Advice (# 119.02).

It has become axiomatic that “Connecticut courts are solicitous of self-represented litigants and strive to ensure that they receive a full and fair opportunity to be heard.”  Orcutt v. Commissioner of Corrections, 284 Conn. 724, 740 n.26 (2007).   Their pleadings are construed liberally.  Kaddah v. Commissioner of Corrections, 299 Conn. 129, 140 (2010).  Section 1–8 of the Practice Book makes clear that the “design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”   This court finds the Magistrate's action in construing a self-represented party's pleading in a way that allows that party to be heard to be entirely appropriate.   The Commissioner has not stated nor can the court discern any substantial harm or prejudice resulting from the Magistrate's action.

Motion for Order (# 127)

The Commissioner's Motion for Order (# 127) articulates a series of questions that he seeks to have the Magistrate answer.   This court construes that motion as a request for articulation of the Magistrate's legal basis for its actions in this case pertaining to her appointment and subsequent removal of the GAL for the minor child.   See, Wallenta v. Moscowitz, 81 Conn.App. 213, 230, cert. denied, 268 Conn. 909 (2004);  Cesilk v. Winer, 62 Conn.App. 650, 652 (2001);  Walshon v. Walshon, 42 Conn.App. 651, 652 (1996).

Given this court's findings regarding the Magistrate's removal of the GAL, the answers to the AAG's questions are moot and unnecessary.   The court denies the Commissioner's Motion for Order (# 127).

SO ORDERED.

Carbonneau, J.

FOOTNOTES

FN1. There is confusion over the Magistrate's order.   However, it is clear to this court that the intent and effect of the Magistrate's decision was to halt any genetic testing at least until her later order of January 25, 2013..  FN1. There is confusion over the Magistrate's order.   However, it is clear to this court that the intent and effect of the Magistrate's decision was to halt any genetic testing at least until her later order of January 25, 2013.

FN2. Sec. 46b–169.   Compelling disclosure of name of putative father.   Institution of action. (a) If the mother of any child born out of wedlock, or the mother of any child born to any married woman during marriage which child shall be found not to be issue of the marriage terminated by a decree of divorce or dissolution or by decree of any court of competent jurisdiction, fails or refuses to disclose the name of the putative father of such child under oath to the Commissioner of Social Services, if such child is a recipient of public assistance, or otherwise to a guardian or a guardian ad litem of such child, such mother may be cited to appear before any judge of the Superior Court and compelled to disclose the name of the putative father under oath and to institute an action to establish the paternity of said child. (b) Any woman who, having been cited to appear before a judge of the Superior Court pursuant to subsection (a) of this section, fails to appear or fails to disclose or fails to prosecute a paternity action may be found to be in contempt of court and may be fined not more than two hundred dollars or imprisoned not more than one year, or both..  FN2. Sec. 46b–169.   Compelling disclosure of name of putative father.   Institution of action. (a) If the mother of any child born out of wedlock, or the mother of any child born to any married woman during marriage which child shall be found not to be issue of the marriage terminated by a decree of divorce or dissolution or by decree of any court of competent jurisdiction, fails or refuses to disclose the name of the putative father of such child under oath to the Commissioner of Social Services, if such child is a recipient of public assistance, or otherwise to a guardian or a guardian ad litem of such child, such mother may be cited to appear before any judge of the Superior Court and compelled to disclose the name of the putative father under oath and to institute an action to establish the paternity of said child. (b) Any woman who, having been cited to appear before a judge of the Superior Court pursuant to subsection (a) of this section, fails to appear or fails to disclose or fails to prosecute a paternity action may be found to be in contempt of court and may be fined not more than two hundred dollars or imprisoned not more than one year, or both.

FN3. There is further confusion in the Magistrate's wording over what is meant by “reconsideration.”   The Magistrate initially ordered genetic testing to determine the paternity of Ms. Tang's child.   Clearly, she is now reconsidering that decision in light of Ms. Tang's “motion” and position to the contrary.   Whether the Magistrate will reverse her initial decision after her reconsideration is not yet decided.   The Magistrate may order a further hearing and argument before her on the issues presented..  FN3. There is further confusion in the Magistrate's wording over what is meant by “reconsideration.”   The Magistrate initially ordered genetic testing to determine the paternity of Ms. Tang's child.   Clearly, she is now reconsidering that decision in light of Ms. Tang's “motion” and position to the contrary.   Whether the Magistrate will reverse her initial decision after her reconsideration is not yet decided.   The Magistrate may order a further hearing and argument before her on the issues presented.

Carbonneau, John L., J.