EASTER HOUSE, INC.
DEPARTMENT OF CHILDREN AND YOUTH SERVICES et al.
Argued March 7, 1990.
Katherine C. Callahan, with whom were Robert M. DeCrescenzo and, on the brief, Thomas J. Shortell, Hartford, for appellants (plaintiffs).
Susan T. Pearlman, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., for appellees (defendants).
Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.
[214 Conn. 561] SHEA, Associate Justice.
The plaintiff, Easter House, Inc., a private not-for-profit Illinois corporation licensed
as an adoption agency in that state, brought this administrative appeal after the defendant, Amy B. Wheaton, the commissioner of the department of children and youth services (DCYS), acting through the attorney general, had issued a letter, on February 7, 1989, ordering it to cease its activities in the placement and adoption of Connecticut children. The defendants moved to dismiss the action for lack of subject matter jurisdiction, claiming that the appeal had not been taken from a final decision of the agency in a "contested case" and that administrative remedies had not been exhausted,  both as required by General Statutes § 4-183(a).  The trial [214 Conn. 562] court granted the motion to dismiss for lack of a decision in a "contested case" and the plaintiff has appealed from that judgment. We find no error.
There is no controversy about the subordinate facts, which may be ascertained from the complaint, from affidavits supporting and opposing the motion to dismiss filed by the parties and from testimony presented at a combined hearing on both the motion to dismiss and a motion of the plaintiff for a stay of the DCYS order.  The plaintiff, a child placement agency licensed by the state of Illinois, has been arranging for out-of-state children to be adopted in Connecticut since 1979. It has no license from this state, as required by General Statutes § 17-49a  for any agency seeking to "place out in [214 Conn. 563] any ... adoption home ... any child either on a temporary or permanent basis," nor has it ever applied for such a license. The plaintiff cannot obtain a license as a child placement agency in this state because it is not a tax exempt organization, as General Statutes
§ 17-49b(a)  requires.
The inability of the plaintiff to obtain a license pursuant to § 17-49a has not been regarded by DCYS as any reason for withholding permission for the placement of out-of-state children for adoption by Connecticut families pursuant to General Statutes § 17-51.  [214 Conn. 564] Since 1979, DCYS has regularly granted such permission and does not object to continuation of this activity by the plaintiff. The plaintiff does not claim to have received DCYS approval for placement of a Connecticut child, except in one instance that occurred after the letter directing the plaintiff to cease this activity had been issued.  After DCYS discovered that the plaintiff had been placing Connecticut children with families in both this state and other states, it issued the letter dated February 7, 1989, ordering it to cease doing so.
In dismissing the appeal for lack of subject matter jurisdiction, the trial court concluded that the complaint failed to allege that the plaintiff had been licensed as a child-placing agency in this state or that it had been approved by DCYS to place a Connecticut child for adoption, except in the instance previously mentioned. The complaint, however, does allege that the plaintiff "was approved as an out-of-state child-placing agency to conduct child-placing activities in the State of Connecticut by DCYS." General Statutes § 4-166(3), at the time of the appeal, defined "license" to include "the whole or any part of any agency permit, certificate, approval, registration, charter, or similar form of permission[214 Conn. 565] required by law...." (Emphasis added.) The ambiguity as to whether these "approved" child-placing activities included the placement of Connecticut children was resolved by the testimony at the hearing on the motion to dismiss. This testimony indicated that the DCYS approvals alleged in the complaint related solely to the placement
of out-of-state children in Connecticut pursuant to § 17-51.
Whether the DCYS letter directing the plaintiff to cease engaging in the placement and adoption of Connecticut children constitutes a final decision in a "contested case" depends upon whether the plaintiff had obtained a license to conduct those activities in this state that the letter has effectively revoked. Section 4-182(c) of our Uniform Administrative Procedure Act  (UAPA) provides that "[n]o revocation ... of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license." DCYS concedes that no such notice or opportunity to be heard was given to the plaintiff prior to issuance of the letter. A "contested case," as defined by General Statutes § 4-166(2),  is "a proceeding, including but not restricted to ... licensing,[214 Conn. 566] in which the legal rights, duties or privileges of a party are required by statute to be determined by an gency after an opportunity for hearing...." If the plaintiff had a license to conduct the activities that the DCYS letter prohibited it from engaging in, therefore, § 4-182(c) entitled the plaintiff to notice and an opportunity for a hearing prior to such a license revocation. The issuance of the letter, as the plaintiff argues, would then have been "a proceeding ... in which the legal rights ... of a party are required by statute [§ 4-182(c) ] to be determined by an agency after an opportunity for hearing" and thus would have satisfied the definition of a "contested case" in § 4-166(2) so that the present appeal would be authorized by § 4-183(a).
The jurisdictional issue, therefore, turns upon whether the plaintiff in fact had a license or an equivalent approval to engage in the placement and adoption of Connecticut children. Section 17-49a of our child welfare laws provides that "[n]o person, agency ... or other organization ... shall place out in any free, working or adoption home ... any child either on a temporary or permanent basis without a license obtained from [DCYS]" and that "[a]pplication for such a license shall be in a form furnished by the commissioner...." The plaintiff concedes that it has never held or even applied for a license as prescribed by § 17-49a. It maintains, however, that, because DCYS had approved its placement of out-of-state children in Connecticut homes for approximately ten years, these approvals constituted a license to place Connecticut children in homes in this state or in other states. The plaintiff relies upon § 4-166 of the UAPA, which defines [214 Conn. 567] "license" to include "the whole or part of any agency ... approval ... or similar form of permission required by law...." ...