In re Joshua S.

• Decision Date: 14 May 2002
• Docket Number: (SC 16561).
• Court: Connecticut Supreme Court
• Parties: IN RE JOSHUA S.

260 Conn. 182

796 A.2d 1141

IN RE JOSHUA S.¹

(SC 16561).

Supreme Court of Connecticut.

Argued December 6, 2001.

Officially released May 14, 2002.

Sullivan, C. J., and Borden, Norcott, Katz and Vertefeuille, Js. Robert T. Rimmer, with whom, on the brief, was Ronald T. Scott, for the appellants (intervenor Chad P. et al.).

Maureen D. Regula, assistant attorney general, with whom were John E. Tucker, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

Dominick J. Thomas, Jr., with whom, on the brief, was Christine L. Curtiss, for the appellees (intervenor Aldo V. et al.).

Opinion

SULLIVAN, C. J.

This appeal arises out of a dispute between, on one side, the named testamentary guardians of a neglected child and, on the other side, the department of children and families (department) and the child's foster parents. After a trial to determine the disposition of the child, the trial court rendered judgment appointing the foster parents as the child's custodians and the department as the child's statutory parent. The testamentary guardians appealed.

The testamentary guardians, Chad P. and Sara P. (Ps), claim on appeal that the trial court improperly: (1) concluded that the petitioner, which was the department, and the foster parents, Aldo V. and Lisa V. (Vs), had rebutted the presumption that it would be in the best interests of the minor child, Joshua S., to permit the Ps to serve as guardians even though the trial court found them to be fit, suitable and worthy custodians for Joshua S.; (2) vested care and personal custody of Joshua S. with the Vs, on the sole basis of the bond that existed between Joshua S. and the Vs, even though that bond was allowed to form and solidify solely as a result of the misconduct and improper actions of the department; (3) concluded that the department should be appointed as Joshua S.' statutory parent after determining that the department had engaged in misconduct; (4) concluded that the Superior Court, rather than the Probate Court, had authority to appoint a statutory parent for Joshua S.; and (5) denied the Ps' motion to dismiss the case for lack of subject matter jurisdiction. We affirm the judgment.

The record reveals the following relevant facts and procedural history. During the early morning hours of June 10, 1999, Kelly S., a woman with a long history of psychiatric problems,² stabbed to death her husband, Charles S., in the bedroom of their East Hartford home. Awakened by the screams of Charles S., Kelly S.' then nine year old daughter, Jessica M., ran into the same bedroom, where Kelly S. then began to stab her repeatedly. Jessica M. ran from the bedroom and down the hall, while being pursued by Kelly S. Kelly S. then doused herself, Jessica M. and a bedroom with gasoline, and set the house on fire. Kelly S. and Charles S., as well as two of their children, Jennifer S., nearly three years old, and Jonah S., one and one-half years old, died in the conflagration. Their son, Joshua S., then two months old, survived.

Jessica M. managed to escape and ran from the house across the street to the home of the Ps, who were neighbors and friends of Kelly S. and Charles S. Awakened upon hearing screams for help, the Ps witnessed "a blaze of fire" running toward their house. After recognizing the individual as Jessica M. and seeing that her hair was on fire, Sara P. instructed her to roll on the Ps' front lawn. Sara P. also threw water on her to help put out the fire. In the meantime, Chad P. telephoned for emergency assistance. As Sara P. pulled Jessica M. into the house, Jessica M. stated, "[m]y Mommy had a nightmare and she killed my Daddy." Soon thereafter, Sara P. noticed that her arms were covered in blood from Jessica M.'s multiple stab wounds. Sara P. then locked the front door and got blankets to wrap Jessica M. During this horrific ordeal, the Ps' five year old son, Caleb, had gotten out of his bed and witnessed Sara P. tending to the burned and bleeding Jessica M.³

Thereafter, emergency assistance arrived and paramedics tended to Jessica M. in the Ps' living room for approximately twenty minutes before transporting her by ambulance to the Connecticut Children's Medical Center (hospital), where she underwent surgery to close up the sixty-one stab wounds she had suffered. At some point, Sara P. told the firefighters where in the house the members of the S. family slept. Soon thereafter, a firefighter rescued Joshua S., carried him out of the burning house to the front lawn and began administering cardiopulmonary resuscitation. Joshua S. also was taken by ambulance to the hospital for further treatment and hospitalization.⁴

On June 11, 1999, because Joshua S. and Jessica M. were both in critical condition and had no one to make decisions for them on medical issues and other matters, the department filed in the Superior Court a petition to have them adjudicated as neglected and uncared-for dependent children, pursuant to General Statutes §§ 46b-120, 46b-121 and 46b-129, and a motion for temporary custody, pursuant to § 46b-129 (b).⁵ The grounds relied on by the department were that the children were neglected, uncared-for and abused, that their parents were now deceased, and that the children were now homeless and in need of a legal guardian.⁶ An ex parte order of temporary custody was issued on June 11, 1999. Thereafter, on June 18, 1999, at a hearing before the Superior Court, Dyer, J., the department alerted the court that mirror wills executed by Charles S. and Kelly S. had been located in their home and that the wills named the Ps as testamentary guardians for Joshua S. The court was further made aware that Chad P. had been approached by the department but had indicated to the department that he and Sara P. were not interested in assuming custody of Joshua S.

Thereafter, on June 18, 1999, the trial court reaffirmed the ex parte order of temporary custody. Upon his discharge from the hospital on June 22, 1999, Joshua S. was placed in the temporary care of the Vs.

On July 19, 1999, a contested hearing was held in Probate Court concerning the wills of Charles S. and Kelly S. The Probate Court ultimately admitted both wills to probate. Because of the pendency of the neglect petition in the Superior Court, however, the Probate Court declined to address the issue of Joshua S.' guardianship, despite the Ps having been named as testamentary guardians.

On July 23, 1999, the department filed a motion with the Superior Court seeking to be appointed as Joshua S.' statutory parent for the purpose of facilitating his adoption, as well as for continuing the jurisdiction of the Superior Court for approval of adoption, pursuant to General Statutes §§ 45a-623, 46b-121 (b), 45a-725 (a) and 45a-718 (a).⁷ On July 28, 1999, the Superior Court granted intervenor status, for dispositional purposes only, to the Vs, who are Joshua S.' foster parents, and to the Ps, because they were named in his parents' wills as testamentary guardians.⁸ In addition, by the agreement of all parties, the Superior Court found, by a fair preponderance of the evidence, that Joshua S. was neglected by his parents.⁹

On October 15, 1999, another hearing was held before the Superior Court to address various pending motions, including the department's motion to appoint itself as Joshua S.' statutory parent and the Ps' motion to dismiss for lack of subject matter jurisdiction.¹⁰ The court ultimately denied the Ps' motion to dismiss, relying on In re Juvenile Appeal (85-BC), 195 Conn. 344, 366, 488 A.2d 790 (1985), where this court determined that, once a child is adjudicated neglected, the Superior Court has exclusive jurisdiction over matters concerning guardianship.

Thereafter, a trial on the dispositional phase of the neglect proceeding was held between July 31, 2000, and August 8, 2000. The trial court named the Vs as Joshua S.' custodians and granted the department's motion to be appointed statutory parent for the purpose of facilitating his adoption by the Vs. The Ps appealed to the Appellate Court from that judgment. This court transferred this appeal to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.¹¹

I

We first consider whether the trial court improperly denied the Ps' motion to dismiss for lack of subject matter jurisdiction.¹² Specifically, the Ps claim that jurisdiction over the appointment of testamentary guardians is vested exclusively with the Probate Court pursuant to General Statutes § 45a-596. The department and the Vs claim, conversely, that § 46b-129, read in conjunction with our decision in In re Juvenile Appeal (85-BC), supra, 195 Conn. 366, confers exclusive jurisdiction over Joshua S. on the Superior Court, because he was adjudicated as neglected. We agree with the department and the Vs and conclude that the Superior Court properly denied the Ps' motion to dismiss for lack of jurisdiction.

The following additional facts and procedural history are relevant to this claim. Immediately after Joshua S. arrived at the hospital during the early morning hours of June 11, 1999, the hospital and the East Hartford police department requested that the department intervene to address Joshua S.' needs, because he was critically injured. That day, the department filed with the Superior Court a neglect petition on behalf of Joshua S., alleging that he was suffering from serious physical injury and was in need of a legal guardian. The same day, the Superior Court granted the petition and ordered the department to assume temporary custody and care over Joshua S.

Also on June 11, 1999, the department learned of the existence of the reciprocal wills of Charles S. and Kelly S. naming the Ps as testamentary guardians, and it informed the Superior Court accordingly. The court was further made aware that Chad P. had been approached by the department but...