In re Baby Z.

• Decision Date: 26 January 1999
• Court: Connecticut Supreme Court
• Parties: IN RE THE ADOPTION OF BABY Z.

247 Conn. 474

724 A.2d 1035

IN RE THE ADOPTION OF BABY Z.

(SC 15868) (SC 15869)

Supreme Court of Connecticut.

Argued May 26, 1998.

Officially released January 26, 1999.

Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, JS. Jane A. Rothchild and Jennifer Middleton, pro hac vice, with whom was Philip D. Tegeler, for the appellants in Docket No. 15868, appellees in Docket No. 15869 (petitioners).

Susan Quinn Cobb, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Carolyn K. Querijero, assistant attorney general, for the appellee in Docket No. 15868, appellant in Docket No. 15869 (respondent). David J. Elliott, John C. Glezen, Allan B. Taylor and Lynn A. Kappelman, filed a brief for the National Association of Social Workers et al. as amici curiae in Docket No. 15869.

Opinion

CALLAHAN, C. J.

These two appeals arise from an adoption application filed in the Probate Court by the petitioners, Anne and Malinda (hereinafter plaintiffs).¹ The following facts and procedural history are undisputed. The plaintiffs, two unrelated women, have lived together for more than ten years. In re Baby Z., 45 Conn. Sup. 33, 34, 699 A.2d 1065 (1996). Together, they planned for the birth of Baby Z., who was conceived by artificial insemination and born to Anne on May 10, 1992.² Id. Since that time, the plaintiffs have shared parental responsibilities for Baby Z. Id.

On November 24, 1993, the plaintiffs submitted an adoption application to the Probate Court for the district of Ledyard.³ In the application, Anne, acting as Baby Z.'s sole legal parent, petitioned the Probate Court to declare Malinda the adoptive parent of Baby Z. without terminating Anne's parental rights. Id., 34. The Probate Court concluded that the proposed adoption did not comply with any of the existing statutory provisions for adoption and denied the plaintiffs' adoption application. In re Baby Z., Probate Court, district of Ledyard (May 12, 1994) 5. Pursuant to General Statutes § 45a-186 (a),⁴ the plaintiffs appealed from the Probate Court's judgment to the Superior Court.⁵ In their appeal, the plaintiffs claimed that the Probate Court had concluded improperly that the adoption statutes did not authorize adoptions in the plaintiffs' circumstances, and that the Probate Court's judgment denying their adoption application "raise[d] serious constitutional problems...."⁶In re Baby Z., supra, 45 Conn. Sup. 38. On appeal, the Superior Court, Austin, J., determined that the proposed adoption would be in Baby Z.'s best interest. Id., 41. The court also concluded that the plaintiffs' application for the adoption of Baby Z. did not fall within any of the three categories of adoptions, i.e., statutory parent,⁷ stepparent or blood relative adoptions, permitted by General Statutes § 45a-724 (a).⁸ The court further concluded, however, that General Statutes § 45a-764⁹ gives the adoption review board (board) authority to waive the requirement under § 45a-724 (a) (1) that only a statutory parent may give a child in adoption to an adult who, like Malinda, is neither the spouse of the child's sole legal parent nor the child's blood relative. Id.; see also General Statutes § 45a-724 (a) (2) (stepparent adoptions); General Statutes § 45a-724 (a) (3) (blood relative adoptions). Observing that stepparent adoptions pursuant to § 45a-724 (a) (2) proceed without disturbing the parental rights of the child's sole legal parent, the Superior Court further concluded that, upon the board's granting of a waiver of the statutory parent requirement of § 45a-724 (a) (1), the proposed adoption could proceed without terminating Anne's parental rights. In re Baby Z., supra, 45 Conn. Sup. 42. The Superior Court, therefore, remanded the case to the Probate Court with direction to submit an application to the board for a waiver of the statutory parent requirement of § 45a-724 (a) (1), and thereafter to grant the proposed adoption upon receipt of a waiver. Id., 51-52. Noting that the plaintiffs' adoption application was not being denied, the court concluded that it was not necessary to address the plaintiffs' constitutional claims at that time. Id., 53.¹⁰

The Probate Court thereafter submitted a waiver application to the board pursuant to § 45a-764 (b). See In re Baby Z., Superior Court, judicial district of New London at Norwich, Docket No. CV960110941S (September 17, 1997) 10. After a properly noticed hearing, however, the board concluded that it did not have the jurisdiction to consider or the authority to grant the Probate Court's application for waiver of the statutory parent requirement. Id., 10-11. The board consequently denied the court's waiver application. Id.

The plaintiffs subsequently brought two appeals to the Superior Court from the decision of the board: a probate appeal to the Superior Court for the judicial district of New London at Norwich pursuant to § 45a-186 (a); and an administrative appeal to the same court pursuant to General Statutes § 4-183 (a).¹¹ The Superior Court, Handy, J., sitting as a court of probate, dismissed the plaintiffs' probate appeal on the grounds that the board's decision did not constitute an order or decree of a court of probate as required by § 45a-186 (a), and consequently was not reviewable as such.

In their administrative appeal from the decision of the board pursuant to § 4-183 (a), the plaintiffs claimed, inter alia, that in denying the waiver application, the board had exceeded its authority and also had deprived them, and Baby Z., of certain constitutional rights.¹²In re Baby Z., supra, Docket No. CV96 0110941S, 7-8. The Superior Court, Handy, J., concluded that the plaintiffs had failed to brief their constitutional claims, and that, consequently, those claims had been abandoned. Id., 8 n.4. The Superior Court further concluded, however, that the board had jurisdiction to waive the requirement that Baby Z. be placed for adoption by the commissioner of children and families (commissioner) or a child-placing agency, and impliedly concluded that the statutory parent requirement also could be waived. Id., 20. Consequently, the court remanded the case to the board with direction to the board to reconsider the waiver application. Id., 20-21.

Three appeals ensued: (1) the plaintiffs appealed to the Appellate Court from the judgment of the Superior Court dismissing their probate appeal; (2) the board appealed to the Appellate Court from the judgment of the Superior Court sustaining the plaintiffs' administrative appeal; and (3) the plaintiffs cross appealed from the latter judgment, challenging the court's determination that they had abandoned their constitutional claims. Acting sua sponte, the Appellate Court ordered that the probate and administrative appeals be heard together. We subsequently transferred both of those appeals to this court pursuant to Practice Book § 4023, now § 65-1, and General Statutes § 51-199 (c).

Thereafter, the board moved for the dismissal of the plaintiffs' cross appeal from the judgment of the Superior Court on the ground that the plaintiffs were not aggrieved by that decision. See General Statutes § 4-183 (a). The plaintiffs then moved for permission to file a late preliminary statement of issues in order to raise their constitutional claims as alternate grounds for affirmance of the judgment of the Superior Court. See Practice Book § 4013 (a) (1), now § 63-4 (a) (1). We granted both motions.

I THE PROBATE APPEAL

The plaintiffs appeal from the judgment of the Superior Court dismissing their probate appeal from the decision of the board, purportedly pursuant to § 45a-186 (a). Specifically, the plaintiffs maintain that the Superior Court improperly concluded that: (1) the board's order denying the waiver application submitted to the board by the Probate Court is not an "order, denial or decree of a court of probate" as required by § 45a-186 (a); and (2) the board is an "agency" within the meaning of General Statutes § 4-166 (1)¹³ of the Uniform Administrative Procedure Act (UAPA) and that a party aggrieved by a final decision of the board may appeal to the Superior Court from that decision pursuant to § 4-183 (a). We disagree with both of these claims.

A

The plaintiffs first maintain that the Superior Court improperly concluded that a decision of the board does not constitute an "order, denial or decree of a court of probate" appealable pursuant to § 45a-186 (a). The powers and responsibilities of the board are governed in relevant part by General Statutes §§ 45a-763¹⁴ and 45a-764. Section 45a-763 provides in relevant part: "(a) An Adoption Review Board is established, to consist of the commissioner of children and families or his designee, the [P]robate [C]ourt administrator or his designee, and an officer of a child-placing agency which is located in the state and licensed by the commissioner of children and families, who shall be appointed by the governor to serve for a term of four years from the date of his appointment.... (d) The members of the board shall receive no compensation for their services as such." Section 45a-764 provides in relevant part: "(a) Notwithstanding the provisions of section 45a-727,¹⁵ the Adoption Review Board may, upon application, notice and hearing as hereinafter provided, for cause shown that it is in the best interests of the minor child, waive the requirement that the minor child be placed by the commissioner of children and families or a child-placing agency. (b) Any judge of probate who has had presented to him an application for adoption which may not proceed because the child has not been so placed may apply in writing to the Adoption Review Board for a waiver of such requirement. (c) Upon receipt of the application, the chairman ... shall set a time and place for a hearing and cause notice to be sent ... to the judge of probate and to all parties entitled to notice in the adoption...