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In re Adrian K.

Court of Appeals of Connecticut

July 18, 2019

IN RE ADRIAN K. [*]

          Argued May 29, 2018

         Procedural History

         Petition to adjudicate the respondents' minor child neglected, brought to the Superior Court in the judicial district of Middletown, Juvenile Matters, where the court, Woods, J., adjudicated the child neglected and ordered protective supervision; thereafter, the court, Sanchez-Figueroa, J., issued ex parte orders granting temporary custody of the child to the petitioner; subsequently, the petitioner filed a motion to open and modify the disposition; thereafter, the court, Sanchez-Figue-roa, J., sustained the orders of temporary custody and denied the respondent father's motion to dismiss, and the respondent father appealed to this court. Affirmed.

          Karen Oliver Damboise, for the appellant (respondent father).

          Carolyn A. Signorelli, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

          Christopher DeMatteo, for the minor child.

          Keller, Bright and Devlin, Js.

          OPINION

          BRIGHT, J.

         The respondent father, Luis K.,[1] appeals from the judgment of the trial court denying his motion to dismiss an order of temporary custody and modifying the dispositive order from protective supervision with the mother to commitment to the custody of the petitioner, the Commissioner of Children and Families. The respondent claims that (1) the court improperly denied his motion to dismiss the order of temporary custody for lack of subject matter jurisdiction, and (2) the court's denial of his motion to dismiss violated his right to due process under the fourteenth amendment to the United States constitution. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant. On November 29, 2017, the petitioner filed a neglect petition on behalf of the infant minor child. An addendum to the petition stated that the mother had used poor judgment by leaving the child alone in a car with the respondent, who had physically abused the child in October, 2017, despite the ‘‘clear recommendation'' of the Department of Children and Families (department) that the respondent be supervised at all times when he was with the child. The child was adjudicated neglected on March 6, 2018. The court, Woods, J., ordered placement of the child with the mother with six months of protective supervision until September 6, 2018. Specific steps for the respondent and the mother were ordered. On April 10, 2018, the respondent was convicted of risk of injury to a child and assault in the third degree arising out of his physical abuse of the child in October, 2017. At the respondent's sentencing, the court issued a standing criminal protective order prohibiting the respondent from having any contact with the child until January 1, 2083. On August 2, 2018, the court, Sanchez-Figueroa, J., granted the petitioner's motion to extend protective supervision of the child in the mother's custody until December 6, 2018. Following an in-court review on November 1, 2018, the court ordered that full custody was vested with the mother and confirmed that the period of protective supervision would expire on December 6, 2018.

         On November 26, 2018, the department received a new referral alleging that the mother was engaging in substance abuse and was allowing the respondent access to the child. After an investigation, the petitioner, pursuant to General Statutes § 17a-101g, placed a ninety-six hour hold on the child and removed him from the mother's custody. On November 29, 2018, the petitioner filed a motion for an order of temporary custody, which was granted ex parte that same day.[2] A preliminary hearing was scheduled for December 7, 2018. In light of the order of temporary custody, the petitioner, pursuant to Practice Book § 33a-6 (c),[3] should have filed a motion to modify protective supervision at least one business day prior to the preliminary hearing. The petitioner, however, did not file a motion to open and modify the dispositional order of protective supervision to commitment until the morning of the hearing on December 7, 2018.

         At the December 7, 2018 preliminary hearing, the respondent argued that protective supervision had expired on December 6, 2018, the motion to modify was filed one day late according to Practice Book § 33a-6 (c), and that ‘‘as of today, there is no underlying neglect petition that accompanies this order . . . of temporary custody . . . . Therefore, we would argue that the court does not have jurisdiction, as there is no underlying neglect petition and the department did not file any such motion to modify protective supervision, pursuant to this Practice Book section within the time period specified in that Practice Book section.''

         The court sustained the order of temporary custody without prejudice until further order of the court. The court allowed the respondent, who was represented by counsel, time to brief his jurisdictional argument. The respondent filed a motion to dismiss on December 21, 2018. Following a hearing, the court denied the motion to dismiss on January 17, 2019, reasoning that Practice Book § 33-6a (c) is directory and that the court had jurisdiction to act on the motion for an order of temporary custody. The court stated that the fact that the motion for an order of temporary custody was granted on November 29, 2018, further solidified the court's subject matter jurisdiction because the order of temporary custody was filed and signed while the existing neglect petition was still active, and the motion for an order of temporary custody served as a ‘‘tacit request to modify the disposition of the protective supervision.'' After a contested hearing, the court, on February 19, 2019, sustained the order of temporary custody and committed the child to the care and custody of the petitioner. The court found that the child would be in immediate physical danger from his surroundings if he were returned to the care and custody of the mother or the respondent. The court noted that the respondent could not have custody of the child due to his incarceration, and that the mother had not reached a level of understanding to make sure the child was kept safe and away from the respondent when he is released from incarceration. This appeal followed.

         I

         The respondent claims that the court improperly denied his motion to dismiss. He contends that the court's subject matter jurisdiction ended when protective supervision expired on December 6, 2018, and that the only mechanism to continue the court's jurisdiction was for the petitioner to file a timely motion to modify. He argues that there was no pending controversy because the petitioner's motion to modify was filed untimely on the day of the preliminary hearing in contravention of what the respondent argues is a mandatory requirement of Practice Book § 33a-6 (c) to file such a motion one business day before the preliminary hearing.[4] We do not agree.

         ‘‘[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . . When reviewing an issue of subject matter jurisdiction on appeal, [w]e have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction. . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the ...


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