Felicia D., In re

Decision Date08 July 1994
Docket NumberNo. 12593,12593
Citation35 Conn.App. 490,646 A.2d 862
PartiesIn re FELICIA D. *
CourtConnecticut Court of Appeals

Barbara J. Claire, New London, for appellant (respondent).

Nina F. Elgo, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Susan T. Pearlman, Benjamin Zivyon and Carolyn Querihero, Asst. Attys. Gen., for appellee (petitioner).

Before DUPONT, C.J., and FOTI and LANDAU, JJ.

LANDAU, Judge.

The respondent mother appeals from the judgment of the trial court granting termination and neglect petitions filed by the department of children and families (DCF) 1 as to her two daughters, Felicia and Janelle. The respondent claims that the trial court improperly (1) denied her motion to dismiss the termination petition regarding Felicia, (2) held that DCF had proved by clear and convincing evidence that she had failed to rehabilitate herself pursuant to General Statutes § 17a-112(b), 2 (3) held that DCF had proved that she had denied Janelle necessary care by reason of act or acts of omission or commission, (4) held that DCF had proved by clear and convincing evidence that the children's best interests were served by the termination of her parental rights.

The following facts are relevant to this appeal. Felicia was born on December 29 1986. After Felicia had been admitted to the hospital on several occasions, DCF filed a neglect petition on April 4, 1987. Felicia was adjudicated uncared for by agreement of the parties on June 9, 1987, and the court committed her to DCF for an eighteen month period. The trial court extended the commitment period on two occasions, November 18, 1988, and April 20, 1990. Effective October 20, 1991, the trial court revoked the commitment, and entered an order of protective supervision for six months, permitting Felicia to return to her mother's custody subject to certain terms and expectations. 3

Janelle, Felicia's younger sister, was born to the respondent on April 16, 1991. On January 11, 1992, Janelle sustained serious physical injuries while in the mother's care. Janelle was flown by Life Star helicopter to Hartford Hospital where she was diagnosed as suffering from a skull fracture, subdural hematoma, and bruising on the skull, buttocks and anus. On January 15, 1992, DCF filed a neglect petition in the interest of Felicia and coterminous petitions in the interest of Janelle in the Superior Court. On February 26, 1992, the trial court, upon the agreement of the parties, adjudicated both Felicia and Janelle neglected as alleged in the petitions. The court committed Janelle to the custody of DCF for a period of eighteen months, and permitted Felicia to remain at her mother's home subject to eighteen months of protective supervision. The protective supervisory order prohibited the mother from allowing any man into her residence without obtaining advance approval from DCF. On April 10, 1992, the trial court, faced with allegations of a violation of that supervisory order, issued an ex parte order of temporary custody of Felicia to DCF. On the same date, DCF moved to open and modify the disposition of Felicia's neglect adjudication and to have her committed to the department.

On May 22, 1992, DCF filed petitions with the trial court seeking the termination of the respondent's parental rights to both Felicia and Janelle. A hearing was held between January 11 and March 1, 1993. On January 15, 1993, the mother filed a motion to dismiss the petition as to Felicia, claiming that the court lacked subject matter jurisdiction. On February 5, 1993, the trial court orally denied the mother's motion to dismiss and granted the petitions, and, on May 21, 1993, issued a memorandum of decision addressing both. 4

I

The respondent argues that the trial court improperly denied her motion to dismiss the petition as to Felicia because it lacked subject matter jurisdiction in three respects: (1) the petition alleged that Felicia was committed to the custody of DCF; (2) the petition alleged as the sole ground for termination the respondent's failure to rehabilitate; and (3) the petition alleged that this ground existed for a period greater than one year. The respondent claims that none of these allegations is true.

A

The respondent contends that because the petition form indicated that Felicia was committed to DCF, when in fact, she was not, the subject matter jurisdiction of the trial court was never invoked.

It is clear from the facts of this case that the trial court proceeded in this action under the supposition that Felicia was not committed. The trial court had committed Felicia to DCF in the past on June 9, 1987, and twice extended that period. On October 8, 1991, the court revoked the commitment and entered an order of protective supervision effective October 20. On February 26, 1992, before the order of protective supervision lapsed, the court, upon agreement of all parties, adjudicated both Janelle and Felicia neglected children. Janelle was committed to the custody of DCF and Felicia was permitted to return to her mother's home under the condition, inter alia, that no male be allowed in the mother's residence without DCF's advance approval. On the basis of a violation of this condition, on April 10, 1992, the trial court issued a new ex parte order of temporary custody to DCF. DCF also filed a motion to open and modify the disposition of Felicia's neglect adjudication and to have Felicia committed. This second neglect petition was filed before the order of protective supervision lapsed. The order of protective supervision was in effect at the time of the hearing before the trial court. The trial court, therefore, at all times pertinent to the resolution of issues raised in the motion to dismiss, proceeded with the knowledge that Felicia was not a committed child. 5

Subject matter jurisdiction is the power of the court "to hear and determine cases of the general class to which the proceedings in question belong." Bank of Babylon v. Quirk, 192 Conn. 447, 449, 472 A.2d 21 (1984). The factual basis for the respondent's motion to dismiss is that on the form 6 for petition for the termination of parental rights, in the section designated "Jurisdiction Based On," the petitioner checked the box next to the phrase "Child Committed to the Custody of the Commissioner of the Department of Children and Youth Services (Gen.Stat. § 17a-112)," rather than the box next to the phrase "Neglect Petition accompanied by Petition for Termination of Parental Rights (Coterminous Petitions) (Gen.Stat. § 17a-112)." The thrust of the respondent's argument is unclear. She seems to be arguing that, since the petitioner checked a particular box, the subject matter jurisdiction of the trial court was not invoked so as to have the power to act on a coterminous petition, but only to act on a petition concerning a child who was committed to the custody of DCF. In In re Michael M., 29 Conn.App. 112, 119-20, 614 A.2d 832 (1992), this court held that a clerical defect will not deprive a court of subject matter jurisdiction if it is clear from the pleadings that the court's jurisdiction was correctly invoked. In this case, the trial court held that because the petition sought to terminate parental rights "in the best interest of the child and for the following reasons.... The child has been found in a prior proceeding to have been neglected or uncared for. The mother has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the life of the child." It was clear that the court was acting with the knowledge that the child was not committed at the time of the petition's filing.

The respondent also argues that the trial court could not have terminated her parental rights pursuant to § 17a-112(e) unless the termination petition was accompanied by a neglect petition that shared a common basis that was anticipated at the time each was filed. She claims that the trial court improperly found that the termination petition accompanied only a neglect petition filed in 1987. The 1987 petition, the respondent argues, was based on the inability to meet Felicia's specialized needs rather than on allegations of neglect, and therefore, does not share a common ground with the termination petition. This claim must fail. The trial court properly found that it had subject matter jurisdiction pursuant to § 17a-112(e) because "the termination petition regarding Felicia, which accompanies the earlier [1992] petition resulting in her adjudication as a neglected child, is construed as being a 'coterminous petition....' " On the basis of this argument, the trial court did not lack subject matter jurisdiction.

B

The respondent also claims that the trial court lacks subject matter jurisdiction because the petition alleged as the sole ground for termination the respondent's failure to rehabilitate. The respondent contends that, even if the neglect petition and the parental termination petition are construed as coterminous, the failure to rehabilitate is not a statutory ground for termination included in General Statutes § 45a-717, which she asserts is the statute authorizing the trial court to terminate parental rights when faced with a coterminous petition.

Coterminous petitions are authorized by General Statutes § 17a-112(e). This section provides: "Any petition brought by the commissioner of children and youth services to the superior court ... may be accompanied by a petition for termination of parental rights filed in accordance with this section with respect to such child...." It is clear that "this section" refers to § 17a-112 in general. That would include subsection (b) which lists "the failure to rehabilitate" as a ground for termination. General Statutes § 17a-112(b)(2).

In addition, the...

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