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In re Noelia M.

Superior Court of Connecticut, Judicial District of Fairfield, Juvenile Matters, Bridgeport

August 19, 2014

IN RE NOELIA M. ET AL. [*]

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[Copyrighted Material Omitted]

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Memorandum of decision articulating ruling denying respondent mother's motion to strike portions of petitions to terminate her parental rights.

SYLLABUS

Termination of parental rights; neglect; motion to strike; in proceeding to terminate parental rights of respondent parents of minor children, where respondent mother filed motion to strike portions of petitions alleging that she had failed to achieve such degree of personal rehabilitation, as required by statute (§ 17a-112 [j] [B] [i]), that would encourage belief that at some future date she could assume responsible position in children's lives, whether authorization in § 17a-112 (j) (3) of termination of parental rights on basis of neglect finding in earlier proceeding, from which mother did not appeal, violated her due process rights; whether motion to strike, filed four months after plea date stated on petitions, was timely filed under rule of practice (§ 34a-8) requiring pleadings to advance within fifteen days from plea date on petitions; where late filed motion to strike did not hinder prosecution or adjudication of case, and petitioner did not claim or sustain actual prejudice, whether court could exercise discretion to excuse adherence to time requirement in § 34a-8 and, pursuant to applicable rule of practice (§ 1-8), consider mother's constitutional claims in interest of justice; whether § 17a-112 (j) (3) (B) (i) required petitioner in termination of parental rights proceeding to prove underlying facts on which finding of neglect was made in prior proceeding; whether collateral estoppel precluded relitigation of facts underlying prior neglect adjudication, where preponderance of evidence standard of proof required in neglect proceedings was lower than clear and convincing evidence standard required in termination of parental rights proceedings, and language of § 17a-112 (j) required application of collateral estoppel and subordinate facts may be proven by lower standard of proof; whether mother's due process rights violated because § 17a-112 (j) (3) (B) (i) authorizes termination of her parental rights without requiring petitioner to relitigate finding of neglect made in prior proceeding; whether requiring petitioner in termination of parental rights proceeding to prove by clear and convincing evidence allegations of neglect made in prior proceeding would impose on state additional administrative, fiscal burdens; whether § 17a-112 (j) (3) (B) comports with due process by balancing interest of state and parents in accurate, just resolution of termination of parental rights litigation, where focus of § 17a-112 (j) (3) (B) is on what parent has done or failed to do in response to conclusive finding of neglect, which is only one factor petitioner must prove by clear and convincing evidence in termination of parental rights proceeding.

Gary A. Mastronardi, for the respondent mother.

Carolyn Signorelli, assistant attorney general, for the petitioner.

Juliana Romano, for the minor child Noelia M.

Sylvester Salcedo, for the minor children Yanilie M. et al.

Lee Riefinger, guardian ad litem, for the minor children Yanilie M. et al.

OPINION

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[53 Conn.Supp. 404] STEVENS, J.

STATEMENT OF THE CASE

On October 17, 2013, the Commissioner of the Department of Children and Families (DCF) filed petitions to terminate the parental rights of the mother, R. M., and the three fathers of the children, Noelia, Yanilie and Ivelia. These petitions allege that parental rights should be terminated on grounds of abandonment, failure to rehabilitate, and no ongoing parent-child relationship pursuant to General Statutes § 17a-112 (j) (3) (A), (B) (i) and (D), respectively.

On March 18, 2014, the respondent mother filed a motion to strike the portions of the petitions that are premised on the ground that she has failed to rehabilitate under § 17a-112 (j) (3) (B) (i). In the motion to strike, the mother contends that this statute authorizes a termination of parental rights based on a finding of neglect entered in an earlier proceeding in violation of her due process rights. DCF filed an objection to the motion on March 20, 2014. After oral argument on April 3, 2014, the court issued a decision from the bench denying the motion to strike and sustaining the objection to the motion. This memorandum articulates that ruling.

The procedural history relevant to this claim is as follows. On June 28, 2014,

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DCF filed amended petitions alleging that the children were neglected in that they had been permitted to live under conditions, circumstances or associations that were injurious to their well-being due to " maltreatment, including, but not limited [53 Conn.Supp. 405] to, malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment or cruel punishment." After a trial on the petitions, the court issued a decision finding neglect and committed the children to DCF's custody. See In re Noelia M., Superior Court, judicial district of Fairfield, Juvenile Matters at Bridgeport, Docket No. F04-CP-12-009499-A, (May 6, 2013) ( Stevens, J. ). The respondent did not appeal from that judgment.

According to the respondent, the portions of the termination petitions relying § 17a-112 (j) (3) (B) (i) should be stricken because this statute allows the termination of her parental rights based on a consideration of the findings of neglect made in the earlier neglect actions and such a consideration under this statutory scheme violates her constitutional rights. DCF opposes the motion on both procedural and substantive grounds. Procedurally, the petitioner argues that the respondent's motion was not timely filed under Practice Book § 34a-8 because the respondent did not file it within fifteen days of November 14, 2013, the date on which she entered her pro forma denials of the petitions. As to the merits of the motion, DCF argues that the motion should be denied because the statutory scheme, when viewed in its entirety, comports with procedural due process requirements and it is, therefore, not unconstitutional.

DISCUSSION

I

DCF first objects to the motion to strike on the ground that the motion was not timely filed under the rules of practice. Practice Book § 34a-8, which applies to child protection proceedings, provides in relevant part: " Commencing on the plea date stated on the petition, pleadings shall first advance within fifteen days from the plea date stated on the petition, and any subsequent [53 Conn.Supp. 406] pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required. . . ." The respondent does not dispute that she filed her motion to strike more than fifteen days after her plea date. In fact, she filed the motion four months after that date.

Thus, the court may deny the motion and decline to consider it on the ground that it was not timely filed. See In re Charles G., Superior Court, judicial district of Hartford, Juvenile Matters, Docket No. H12-CP-12-014681-A, (January 28, 2013) ( Burgdorff, J. ) (denying a motion to strike because it was not timely filed in accordance with Practice Book § 34a-8); see also Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273-74, 819 A.2d 773 (2003) (" when a party properly objects to a violation of the rules of practice, the trial court may disregard the improperly raised claim if doing so is not an abuse of discretion" ). On the other hand, the law is also well settled that " [o]ur rules of practice are designed 'to facilitate business and advance justice'; thus, 'they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.' Practice Book § 1-8." Lohnes v. Hospital of Saint Raphael, 132 Conn.App. 68, 74, 31 A.3d 810 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012).

In evaluating whether to exercise its discretion to excuse strict adherence to

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the time requirement, the court should consider the length of the delay, the reasons for the delay, its impact on the pleadings or on the prompt adjudication of the case, and the actual prejudice to the other party, especially that party's ability to respond to the motion. In this particular case, DCF has responded to the merits of the motion and [53 Conn.Supp. 407] has neither claimed nor sustained any actual prejudice. The motion has not hindered the prosecution or adjudication of this case. The court concludes that the interests of justice are advanced by a consideration of the mother's constitutional claims. See generally Citibank, N.A. v. Hellman, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6013882-S, (March 12, 2013) ( Hon. Alfred J. Jennings, judge trial referee) (55 Conn.L.Rptr. 623, 624-25) (where the court summarizes recent trial court decisions on a party's failure to comply with Practice Book § 10-8).[1]

II

Practice Book § 34a-15, which applies to child protection proceedings, provides in relevant part: " (a) Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any petition, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested petition or part thereof. . . ." [2]

[53 Conn.Supp. 408] " A motion to strike attacks the legal sufficiency of the allegations in a pleading." Keane v. Fischetti, 300 Conn. 395, 402, 13 A.3d 1089 (2011). " [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action. . . . If the pleading fails to establish a valid cause of action, a court shall grant a motion to strike the offending claims." Keane v. Fischetti, supra, 402.

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On the other hand, " [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

III

A

As previously stated, the respondent moves to strike the portions of the termination petitions in which the commissioner seeks to terminate her parental rights under § 17a-112 (j) (3) (B) (i). She argues that this statute, as interpreted by our Appellate Court in In re Stephen M., 1 ...


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