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In re Henrry P. B.-P.

Court of Appeals of Connecticut

February 24, 2017


          Argued January 20, 2017

         Appeal from Superior Court, judicial district of Hartford, Juvenile Matters, Dannehy, J. [judgment of dismissal underlying AC 39276]; Burgdorff, J. [judgment of dismissal underlying AC 39787])

          Enelsa Diaz, with whom were Giovanna Shay and, on the brief, Kelly Bonafe´, for the appellants (petitioner et al.).

          Edwin D. Colon filed a brief for the Center for Children's Advocacy, Inc., as amicus curiae.

          Lavine, Mullins and Bear, Js.


          BEAR, J.

         These appeals highlight the limitations that courts encounter when relevant statutes provide rights, opportunities, or protections for minor children that end when they reach the age of majority, thus losing their status as juveniles. In this case, what Henrry P. B.-P. (Henrry) faces, because of Connecticut's current statutory structure, is his inability to have the Probate Court consider and make the findings that are necessary for him to petition the federal government to remain in this country. The law that we are constrained to apply, as an intermediate appellate court, in our plenary review of the relevant legal issues raisedin these consolidated appeals is set forth in two recent Supreme Court opinions, In re Jose B., 303 Conn. 569, 34 A.3d 975 (2012), and In re Jessica M., 303 Conn. 584, 35 A.3d 1072 (2012). See also In re Pedro J. C., 154 Conn.App. 517, 543 n.22, 105 A.3d 943 (2014). We conclude, on the basis of that law, that after Henrry reached the age of majority, the Probate Court lacked statutory authority to make the findings required by the petitions filed by his mother, the petitioner, Reyna P. A., to appoint a coguardian for Henrry, and to consider and make the special immigration juvenile status (juvenile status) findings permitted by General Statutes § 45a-608n (b) for minor children. Accordingly, we affirm the judgments of the Superior Court dismissing the appeals from the decisions of the Probate Court.

         The following factual and procedural history is relevant to these appeals. Approximately five weeks before Henrry reached age eighteen, the petitioner, on March 1, 2016, filed a petition in the Probate Court seeking the removal of his deceased father as his guardian and the appointment of a nonrelative, her boyfriend, Santos O. R., as coguardian of Henrry with her. The petitioner represented in that petition that Henrry had been abandoned by his father in the sense that he had failed to maintain a reasonable degree of interest, concern or responsibility for Henrry's welfare; that Henrry had been denied the care, guidance or control necessary for his physical, educational, moral, or emotional well-being as a result of acts of parental commission or omission as defined by law; and that Henrry was neglected or uncared for, as defined in General Statutes § 46b-120. Also on March 1, 2016, the petitioner filed a petition for special immigrant juvenile findings under 8 U.S.C. § 1101 (a) (27) (J) (2012). Despite the petitioner's request, the Probate Court did not take action prior to Henrry's eighteenth birthday on either of the petitions.

         The first appeal to the Superior Court filed by the petitioner and Henrry was from the denial of the petition to the Probate Court seeking emergency relief before Henrry reached the age of majority and ceased to be a juvenile. On May 19, 2016, the Superior Court for Juvenile Matters dismissed that appeal for lack of jurisdiction, and on June 2, 2016, the petitioner and Henrry filed the appeal in AC 39276 in this court.

         In their first appellate brief to this court, the petitioner and Henrry set forth the following additional facts and procedural history: ‘‘This appeal stems from the Juvenile Court's dismissal of the . . . appeal from Probate Court, in which the Probate Court denied . . . [Henrry] then a minor child, and his mother, [the petitioner], the opportunity to be heard before Henrry turned eighteen years old, and to obtain necessary [juvenile status] findings, based on a misinterpretation of Connecticut's 2014 [juvenile status] findings statute, § 45a-608n.

         ‘‘[The petitioner] and her two minor children, Henrry and [his sister], are from Honduras. After her husband and father-in-law were brutally murdered by the same group of individuals, [the petitioner] fled Honduras, seeking safety in the United States and leaving her two minor children behind with their paternal grandmother because they were too young to make the treacherous journey into the [United States]. As the children grew into adolescents, the threats against them began to escalate as well. . . . Eventually, fearing for their lives, the two minor siblings, unbeknownst to relatives, decided to embark on their own journey into the United States to find their mother and seek refuge. . . .

         ‘‘Upon entering the United States in 2015, Henrry and [his sister] were detained by Immigration Customs and Border Patrol and then ultimately released to [the petitioner] in Connecticut. They were seventeen and sixteen years old at that time. Since arriving in Connecticut, both minors have resided with [the petitioner] and the proposed coguardian in this case, [Santos O. R.], and have been enrolled in . . . high school, where Henrry recently completed tenth grade. . . . Both [the petitioner] and [Santos O. R.] work full-time to support the needs of Henrry and his siblings. . . .

         ‘‘On March 1, 2016, approximately five weeks prior to Henrry's eighteenth birthday, [the petitioner], through counsel, initiated the underlying Probate Court action. On that date, she filed a petition for removal of guardian, to remove her minor children's father as guardian and affirm herself as guardian, and additionally seeking the appointment of [Santos O. R.] as her coguardian. . . . On that date, she also filed a petition for special immigrant juvenile status [(juvenile status)] findings under 8 U.S.C. § 1101 [(a) (27) (J) (2012)], pursuant to § 45a-608n, to be used in connection with an application to the United States Citizenship and Immigration Services [(Immigration Services)]. . . . Finally, on that date, [the petitioner] filed a motion for waiver of study by the Department of Children and Families [(department)] for Henrry, notifying the Probate Court that Henrry would be turning eighteen in approximately five weeks, and that time was of the essence. . . .

         ‘‘In her motion for waiver of the [department] study, [the petitioner] stated that Henrry was currently without legal status in the United States and [was] seeking findings from the court in connection with an application for [juvenile status] through [Immigration Services]. . . . She explained that the child had fled his country of origin of Honduras due to threatened violence against his life and that of his sister; that the father and paternal grandfather of the minor child[ren] were both murdered by the same individuals who are now seeking to murder him and his sister as well; that it was not in the child's best interest to be returned to his country of origin where he will be placed at risk of imminent death. . . . She further claimed that no [department] study was needed here where the child was found to be in good health, was currently in the care of his biological mother and the proposed coguardian, [Santos O. R.], who have the emotional and physical ability to care for the minor, have the financial resources to care for the minor, and neither of which have a history of child abuse or neglect investigations or substantiations. . . . Finally, her motion stated that Henrry was over the age of twelve years old and consented to the petitions and relief sought, and was emotionally connected with [her], who would remain as guardian of the child. . . . Her motion concluded that it was in the best interest of the child to expedite the underlying petitions, indicating that the requirement to have the commissioner of [the department] complete a study would cause unreasonable delay that could prohibit this child from seeking relief from [Immigration Services] to obtain legal immigration status. . . .

         ‘‘On March 23, 2016, the Probate Court issued its first order of notice of hearing in this case indicating that the matter was being set down for a hearing with ‘no appearance necessary' by the parties on April 22, 2016, a date after Henrry's eighteenth birthday. . . . The Probate Court also [sent notice to] a [department] social work supervisor, ordering [the department] to complete a study for both minors on the petition for removal, and impliedly denying [the petitioner's] motion for the waiver of study by [the department] for Henrry. . . .

         ‘‘On April 1, 2016, with Henrry's eighteenth birthday closely approaching, with no [department] study and no hearing date, [the petitioner] filed an emergency petition for findings under § 45a-608n, the [juvenile status] statute. . . . In her motion, [the petitioner] requested that the court make findings in connection with her petition for [juvenile status] findings, or, in the alternative, hold an emergency hearing before Henrry's eighteenth birthday, in order to do so. . . . The attorney for the child, appointed by the Probate Court, Attorney Frank Two hill, having received a copy of the Emergency Petition, visited with the child and wrote a letter to the court indicating both his support for the Petition, and his availability for an evidentiary hearing on the emergency petition, should the court choose to hold one. . . .

         ‘‘On April 1, 2016, the Probate Court [Chadwick, J., ] denied the emergency petition in a brief written order, indicating that: ‘The Emergency Petition for Findings under [§] 45a-608n, dated April 1, 2016, is hereby DENIED by the court. Pursuant to [§] 45a-608n (b), the granting of a petition to remove is a prerequisite to making the requested written findings.' . . . Henrry subsequently turned eighteen a few days later, before any hearing was ever held in the Probate Court.

         ‘‘On April 22, 2016, [the petitioner] and Henrry (now eighteen years old) jointly filed an appeal to Superior Court for Juvenile Matters pursuant to [General Statutes §] 45a-186 (a) and Practice Book § 10-76 (a), appealing both the March 23, 2016 order, setting a ‘no appearance' hearing after Henrry's eighteenth birthday and impliedly denying [the petitioner's] motion for waiver of the study by [the department], and the April 1, 2016 order, denying the emergency petition for findings under [§] 45a-608n. . . . The [appeal] raised three claims: (1) that the Probate Court had misinterpreted § 45a-608n (b) by concluding that it could not make [juvenile status] findings without deciding the underlying petition on removal of a guardian and appointment of a coguardian; (2) that the Probate Court had violated due process by failing to set a hearing prior to Henrry's eighteenth birthday, thus denying the [petitioner and Henrry] an opportunity to be heard at a meaningful time and in a meaningful manner; and (3) that the Probate Court had abused its discretion. . . . [The petitioner and Henrry] requested that the Juvenile Court reverse the Probate Court and remand for a hearing on [juvenile status] findings. . . . The Juvenile Court set the matter down for a hearing on May 19, 2016, and another attorney was appointed for Henrry as attorney for the minor child. . . .

         ‘‘On May 19, 2016, the Juvenile Court [Dannehy, J., ] dismissed the appeal from Probate Court on the record, without holding an evidentiary hearing, stating that the Juvenile Court lacked jurisdiction over the appeal, because Henrry was now eighteen years old. . . . [The petitioner] and Henrry filed [the appeal in docket number AC 39276] with this court on June 2, 2016. . . .

         ‘‘On May 31, 2016, subsequent to the taking of this appeal, and approximately eight weeks after Henrry's eighteenth birthday, [the department] completed its social study on both Henrry and his sister . . . and provided its report to the Probate Court. In its report, [the department] indicated its support for the pending petitions, asking that the court grant the petition to remove the father as guardian, to affirm [the petitioner] as guardian, and to appoint [Santos O. R.] as coguardian of Henrry and his [sister]. . . .

         ‘‘On June 3, 2016, the Probate Court issued another order for notice of hearing, this time scheduling an actual hearing date for the underlying petitions for July 19, 2016, but the hearing was set down for [Henrry's sister] . . . and not for Henrry. . . . On June 22, 2016, [the petitioner] filed a motion to schedule hearing or for a dispositive order in Henrry's case. . . . The Probate Court responded to the motion by scheduling a hearing on the underlying petitions for Henrry on July 19, 2016, along with that of his younger sister . . . .

         ‘‘On July 19, 2016, the Probate Court held a full hearing for both Henrry and his sister, first entertaining legal argument from counsel on the jurisdictional issue regarding Henrry's case, now that he is eighteen, and then taking testimony on the substantive issues from all the interested parties. The matter was then taken under advisement . . . .'' (Citations omitted; footnotes omitted.)

         On August 30, 2016, the Probate Court mailed its decision affirming the petitioner as sole guardian, but denying her petition for removal of the father as guardian and the appointment of Santos O. R. as coguardian of Henrry because Henrry was eighteen years old and no longer a minor child. It declined to make the requested juvenile status findings, also because Henrry was age eighteen and no longer a minor child. On September 26, 2016, the petitioner and Henrry filed a second appeal to the Superior Court for Juvenile Matters from the Probate Court's August 30, 2016 decision, and on November 1, 2016, that appeal was dismissed. On November 4, 2016, the petitioner and Henrry appealed to this court. The two appeals were consolidated and the petitioner and Henrry were allowed to file a supplemental brief. That brief contained a supplemental statement of facts and procedural history as follows:

‘‘This account supplements the statement of facts in the . . . opening brief in AC 39276. This consolidated appeal challenges first the interlocutory orders (appealed in AC 39276) and then the final orders (appealed in AC 39787) of the Probate Court. The appeal in AC 39276 challenges the denial of a hearing on [the petitioner's] petitions in Probate Court before Henrry turned eighteen, and the Juvenile Court's May 19, 2016 dismissal of the . . . appeal from [the Probate Court] . . . . The appeal in AC 39787 challenges the Probate Court's final orders denying [the petitioner's] petitions because Henrry had turned eighteen, which were appealed to the Juvenile Court . . . and dismissed on November 1, 2016.

         ‘‘The underlying petitions filed by [the petitioner] on March 1, 2016, for removal of Henrry's deceased parent as guardian and appointment of [Santos O. R.] as co-guardian were eventually heard over four and a half months later, because the Probate Court ordered [the department] to conduct a home study regarding the soon-to-be eighteen year old consenting minor, who was already residing with the petitioning parent and proposed coguardian. The [department's] study was returned to the Probate Court approximately two months after Henrry's eighteenth birthday. The Probate Court then held a hearing for Henrry on July 19, 2016, in the Hartford Regional Children's Probate Court. . . .

         ‘‘On August 30, 2016, the Probate Court mailed its final orders from the July 19, 2016 hearing in Henrry's case. In those orders, the Probate Court affirmed [the petitioner] as sole guardian but denied the underlying petition for removal of guardian and request for appointment of coguardian because Henrry had turned eighteen. . . . It declined to make the [juvenile status] findings, and closed Henrry's case. . . .

         ‘‘On September 26, 2016, [the petitioner and Henrry] filed a joint appeal from Probate Court in the Juvenile Court. . . . That appeal was dismissed on November 1, 2016, because Henrry was eighteen. . . .

         ‘‘On November 4, 2016, [the petitioner and Henrry] filed a joint appeal to the Appellate Court, which was docketed as AC 39787, [and] . . . moved to consolidate AC 39787 with their pending appeal AC 39276. . . . This court granted that motion and allowed for this supplemental brief.'' (Citations omitted; footnotes omitted.)

         We assume in deciding these consolidated appeals that the statements of facts and procedural history set forth previously are reasonably accurate. We also take note of the statements of counsel during oral argument before this court that Henrry and his sister had arrived in the United States from Honduras approximately eight months prior to the filing of the petitions in the Probate Court, and that the petitioner had contacted such counsel approximately one month prior to the eventual filing of the petitions.

         The claims[1] raised in these appeals arise from and depend on several statutes set forth in chapter 802h of the General Statutes, which pertains to protected persons, including minors or minor children. Our review is therefore plenary. In re Jose B., supra, 303 Conn. 580. Part II of chapter 802h relates to guardianship of minors. Pursuant to General Statutes § 45a-604 (4), ‘‘minor'' or ‘‘minor child'' means a person under the age of eighteen. Pursuant to General Statutes § 45a-604 (5), ‘‘guardianship'' means guardianship of the person of a minor. Pursuant to General Statutes § 45a-606, the biological father and mother are joint guardians of the person of the minor, and the powers, rights, and duties of the father and the mother in regard to the minor are equal. If either the father or the mother dies or is removed as guardian, the other parent becomes the sole guardian of the person of the minor child. General Statutes § 45a-606. In this case, therefore, on the date the petitioner filed the petitions she, pursuant to § 45a-606, was Henrry's sole guardian because his father was and had been deceased before he arrived in the United States. There is no mention in that statute, in § 45a-608n, or in any other of the statutes in part II of chapter 802h, of any statutory authority granted to Connecticut courts to take action with respect to a person who has reached the age of majority. Section 45a-608n by its terms applies solely during the minority of any child.[2]

         General Statutes § 45a-609 (a) provides in relevant part: ‘‘Upon application for removal of a parent or parents as guardian, the court shall set a time and place for hearing to be held within thirty days of the application, unless the court requests an investigation in accordance with the provisions of section 45a-619. In that case, the court shall set a day for hearing not more than thirty days following receipt of the results of the investigation. . . .''

         General Statutes § 45a-616 provides in relevant part: ‘‘(b) If any minor has a parent or guardian, who is the sole guardian of the person of the child, the court of probate for the district in which the minor resides may, on the application of the parent or guardian of such child or of the Commissioner of Children and Families with the consent of such parent or guardian and with regard to a child within the care of the commissioner, appoint one or more persons to serve as coguardians of the child. When ...

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