Adrien C., In re

• Decision Date: 24 February 1987
• Docket Number: No. 4788,4788
• Citation: 9 Conn.App. 506,519 A.2d 1241
• Court: Connecticut Court of Appeals
• Parties: In re ADRIEN C. *

Page 1241

519 A.2d 1241

9 Conn.App. 506

In re ADRIEN C. ^*

No. 4788.

Appellate Court of Connecticut.

Argued Nov. 4, 1986.

Decided Jan. 20, 1987.

Certification Denied Feb. 24, 1987.

Lynn B. Cochrane, Special Public Defender, with whom was Noreen A. Shugrue, Hartford, for appellant (respondent mother).

Patricia Pac, Asst. Atty. Gen., with whom, on brief, were Joseph I. Lieberman, Atty. Gen., and Robert W. Garvey, Asst. Atty. Gen., Hartford, for appellee (Commissioner of Children and Youth Services).

Before DUPONT, C.J., and SPALLONE and BIELUCH, JJ.

SPALLONE, Judge.

The respondent is appealing from the order of the trial court terminating her parental rights. The respondent claims that the trial court erred (1) in denying her motion to dismiss the petition for lack of subject matter jurisdiction, and (2) in terminating her parental rights without first finding that the grounds for termination had existed for more than one year before the filing of the termination petition.

On February 2, 1984, the respondent's child, with the voluntary assent of the respondent, was adjudicated uncared for and was committed to the commissioner of the department of children and youth services (DCYS or commissioner) for the statutory maximum of eighteen months. On May 28, 1985, sixty-seven days before the expiration of the eighteen month commitment, the commissioner filed a petition to terminate the respondent's parental rights. The petition alleged three statutory grounds for termination ¹ and further alleged that the grounds had existed not less than one year. On June 25, 1985, at a plea hearing, the respondent entered a denial to the allegations of the petition and agreed with the commissioner to an extension of the child's commitment.

On September 17, 1985, the day the trial was to begin, the respondent filed a motion to dismiss the termination petition. The respondent alleged that the court lacked subject matter jurisdiction because the commissioner had filed the petition only sixty-seven days before the expiration of the child's commitment, whereas General Statutes § 46b-129(e) ² requires that such petition "shall" be filed ninety days before the expiration of such commitment.

The trial court denied the motion to dismiss, and extended, suo motu, the child's commitment. After a full trial, the court, on November 27, 1985, rendered judgment terminating the respondent's parental rights. The court based its decision on two statutory grounds:

(1) that the respondent had 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; General Statutes § 17-43a(b)(2); and (2) that there was no ongoing parent-child relationship, and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interests of the child. General Statutes § 17-43a(b)(4). From this judgment, the respondent appeals.

The respondent's first claim is that the trial court erred in denying her motion to dismiss the commissioner's termination petition because the petition was not filed ninety days before the termination of the child's commitment as prescribed by General Statutes § 46b-129(e). We disagree.

General Statutes § 46b-129 governs petitions for adjudication of neglected children and the appropriate "commitment" of their custody. Section 46b-129(e) requires that ninety days before the expiration of each eighteen month commitment made in accordance with § 46b-129(d), the commissioner "shall" petition the Superior Court either (1) to revoke the commitment, (2) to terminate the parental rights, or (3) to extend the commitment an additional period. Our concern is whether the use of the word "shall" in this section makes the ninety day filing period mandatory or directory. If the term "shall" is directory rather than mandatory, the failure of the commissioner to file the petition within ninety days of the expiration of the commitment would not deprive the court of jurisdiction over this proceeding. See Winslow v. Zoning Board, 143 Conn. 381, 387-88, 122 A.2d 789 (1956).

Although the word "shall" is generally determined to be mandatory; Graham v. Zimmerman, 181 Conn. 367, 371, 435 A.2d 996 (1980); Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29, 226 A.2d 380 (1967); our Supreme Court has consistently shown "a disposition to look through the literal meaning of words and forms of procedure to the essential purposes to be served." Tramontano v. Dilieto, 192 Conn. 426, 433, 472 A.2d 768 (1984), quoting Conners v. New Haven, 101 Conn. 191, 198, 125 A. 375 (1924). This consistency has been manifest since the early decisions of the court in this state. Conners v. New Haven, supra; State ex rel. Rylands v. Pinkerman, 63 Conn. 176, 197, 28 A. 110 (1893); Baldwin v. North Branford, 32 Conn. 47, 54-55 (1864); Bartlett v. Kinsley, 15 Conn. 327, 332-33 (1843); West School District of Canton v. Merrills, 12 Conn. 437, 438-39 (1838); Todd v. Hall, 10 Conn. 544, 557-58 (1835). The use of the word "shall," though significant, does not invariably create a mandatory duty because statutes must be viewed as a whole to ascertain the legislative intention. Tramontano v. Dilieto, supra; State ex rel. Arcudi v. Iassogna, 165 Conn. 203, 204-205, 332 A.2d 90 (1973).

"The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Winslow v. Zoning Board, [supra, 143 Conn. at 388, 122 A.2d 789]. 'Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.' Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969)." Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985).

In this case, the ninety day time frame in General Statutes § 46b-129(e) was enacted as part of a revision of this statute by No. 579 of the 1979 Public Acts. Prior to this revision, children committed by the court to DCYS were often placed in foster care for indeterminate and lengthy periods without further judicial review. In re Juvenile Appeal (85-BC), 195 Conn. 344, 358, 488 A.2d 790 (1985) (discussing legislative history). The 1979 act, however, established a two year maximum time limit for the period of commitment to custody which limit was subsequently reduced to eighteen months by No. 181 of the 1982 Public Acts. In re Juvenile Appeal (85-BC), supra, at 358, 488 A.2d 790; see General Statutes § 46b-129(d). The 1979 act also required DCYS to either revoke the commitment, terminate the parental rights, or seek an extension of the commitment "ninety days before the expiration" of the commitment. General Statutes § 46b-129(e). "The legislative concerns underlying the establishment of the time limits of § 46b-129(d) and (e) are thus unambiguous: to establish a durational limitation on the frequently lengthy placement of children in foster homes or other institutions while committed to DCYS so as to require periodic judicial review of their cases." In re Juvenile Appeal (85-BC), supra, at 361, 488 A.2d 790. These time restrictions on commitment, in turn, encourage the formation of a permanent plan for the child, which is generally agreed to be consistent with the best interests of children in temporary foster care.

Although it is clear that the legislature intended to place time limitations on DCYS actions when it amended General Statutes § 46b-129, it is equally clear that the time restriction that was of the greatest concern was the two year (now eighteen month) commitment restriction in § 46b-129(d) rather than the ninety day petition deadline in § 46b-129(e). The two year limit fixed the duration of DCYS commitments, while the ninety day deadline merely sought to enforce that limit by requiring DCYS to initiate judicial action and provide notice to the relevant parties at a reasonable period before the expiration of the commitment. The two year deadline was the focus of the legislative discussion; In re Juvenile Appeal (85-BC), supra, at 358-61, 488 A.2d 790; while little mention was made of the ninety day deadline. The ninety day deadline therefore appears to be "designed to secure order, system and dispatch in the proceedings" and is thus directory rather than mandatory in these proceedings. Fidelity Trust Co. v. BVD Associates, supra, 196 Conn. at 278, 492 A.2d 180. In addition, as in other statutory provisions that have been determined to be directory, the requirement here prescribes what is to be done without invalidating an action or otherwise providing a penalty upon a failure to comply. Id. Furthermore, we are not unmindful that a mandatory construction of § 46b-129(e) could result in the undesirable termination of a commitment and the return of a child to what could be a hostile, unsafe and dangerous environment. Such an action would certainly not be in the best interest of the child. See General Statutes §§ 17-43a, 46b-129(e); In re Juvenile Appeal (83-CD), 189 Conn. 276, 285, 455 A.2d 1313 (1983). We find no error in the trial court's definition of "shall" as directory rather than mandatory in the context of General Statutes § 46b-129(e).

Because we concur...