In re Noelia M.

• Decision Date: 19 August 2014
• Docket Number: F04–CP–12–009500–A,Nos. F04–CP–12–009499–A,F04–CP–12–009501–A.,s. F04–CP–12–009499–A
• Citation: 121 A.3d 1
• Court: Connecticut Superior Court
• Parties: In re NOELIA M. et al.

121 A.3d 1

In re NOELIA M. et al.^*

Nos. F04–CP–12–009499–A

F04–CP–12–009500–A

F04–CP–12–009501–A.

Superior Court of Connecticut, Judicial District of Fairfield, Juvenile Matters at Bridgeport.

Aug. 19, 2014.

Gary A. Mastronardi, Bridgeport, for the respondent mother.

Carolyn Signorelli, assistant attorney general, for the petitioner.

Juliana Romano, for the minor child Noelia M.

Sylvester Salcedo, for the minor children Yanilie M. et al.

Lee Riefinger, guardian ad litem, for the minor children Yanilie M. et al.

STEVENS, J.

STATEMENT OF THE CASE

On October 17, 2013, the Commissioner of the Department of Children and Families (DCF) filed petitions to terminate the parental rights of the mother, R. M., and the three fathers of the children, Noelia, Yanilie and Ivelia. These petitions allege that parental rights should be terminated on grounds of abandonment, failure to rehabilitate, and no ongoing parent-child relationship pursuant to General Statutes § 17a–112(j)(3)(A), (B)(i) and (D), respectively.

On March 18, 2014, the respondent mother filed a motion to strike the portions of the petitions that are premised on the ground that she has failed to rehabilitate under § 17a–112(j)(3)(B)(i). In the motion to strike, the mother contends that this statute authorizes a termination of parental rights based on a finding of neglect entered in an earlier proceeding in violation of her due process rights. DCF filed an objection to the motion on March 20, 2014. After oral argument on April 3, 2014, the court issued a decision from the bench denying the motion to strike and sustaining the objection to the motion. This memorandum articulates that ruling.

The procedural history relevant to this claim is as follows. On June 28, 2014, DCF filed amended petitions alleging that the children were neglected in that they had been permitted to live under conditions, circumstances or associations that were injurious to their well-being due to “maltreatment, including, but not limited

to, malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment or cruel punishment.” After a trial on the petitions, the court issued a decision finding neglect and committed the children to DCF's custody. See In re Noelia M., Superior Court, judicial district of Fairfield, Juvenile Matters at Bridgeport, Docket No. F04–CP–12–009499–A, 2013 WL 2350776 (May 6, 2013) (Stevens, J. ). The respondent did not appeal from that judgment.

According to the respondent, the portions of the termination petitions relying § 17a–112(j)(3)(B)(i) should be stricken because this statute allows the termination of her parental rights based on a consideration of the findings of neglect made in the earlier neglect actions and such a consideration under this statutory scheme violates her constitutional rights. DCF opposes the motion on both procedural and substantive grounds. Procedurally, the petitioner argues that the respondent's motion was not timely filed under Practice Book § 34a–8 because the respondent did not file it within fifteen days of November 14, 2013, the date on which she entered her pro forma denials of the petitions. As to the merits of the motion, DCF argues that the motion should be denied because the statutory scheme, when viewed in its entirety, comports with procedural due process requirements and it is, therefore, not unconstitutional.

DISCUSSION

I

DCF first objects to the motion to strike on the ground that the motion was not timely filed under the rules of practice. Practice Book § 34a–8, which applies to child protection proceedings, provides in relevant part: “Commencing on the plea date stated on the petition, pleadings shall first advance within fifteen days from the plea date stated on the petition, and any subsequent

pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required....” The respondent does not dispute that she filed her motion to strike more than fifteen days after her plea date. In fact, she filed the motion four months after that date.

Thus, the court may deny the motion and decline to consider it on the ground that it was not timely filed. See In re Charles G., Superior Court, judicial district of Hartford, Juvenile Matters, Docket No. H12–CP–12–014681–A, 2013 WL 812311 (January 28, 2013) (Burgdorff, J. ) (denying a motion to strike because it was not timely filed in accordance with Practice Book § 34a–8 ); see also Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273–74, 819 A.2d 773 (2003) (“when a party properly objects to a violation of the rules of practice, the trial court may disregard the improperly raised claim if doing so is not an abuse of discretion”). On the other hand, the law is also well settled that “[o]ur rules of practice are designed ‘to facilitate business and advance justice’; thus, ‘they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.’ Practice Book § 1–8.” Lohnes v. Hospital of Saint Raphael, 132 Conn.App. 68, 74, 31 A.3d 810 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012).

In evaluating whether to exercise its discretion to excuse strict adherence to the time requirement, the court should consider the length of the delay, the reasons for the delay, its impact on the pleadings or on the prompt adjudication of the case, and the actual prejudice to the other party, especially that party's ability to respond to the motion. In this particular case, DCF has responded to the merits of the motion and

has neither claimed nor sustained any actual prejudice. The motion has not hindered the prosecution or adjudication of this case. The court concludes that the interests of justice are advanced by a consideration of the mother's constitutional claims. See generally Citibank, N.A. v. Hellman, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–12–6013882–S, 2013 WL 1277310 (March 12, 2013) (Hon. Alfred J. Jennings, judge trial referee) (55 Conn. L. Rptr. 623, 624–25 ) (where the court summarizes recent trial court decisions on a party's failure to comply with Practice Book § 10–8 ).¹

II

Practice Book § 34a–15, which applies to child protection proceedings, provides in relevant part: “(a) Whenever any party wishes to contest ... the legal sufficiency of the allegations of any petition, or of any one or more counts thereof, to state a claim upon which relief can be granted ... that party may do so by filing a motion to strike the contested petition or part thereof....”²

“A motion to strike attacks the legal sufficiency of the allegations in a pleading.” Keane v. Fischetti, 300 Conn. 395, 402, 13 A.3d 1089 (2011). “[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.... The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.” (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011). “In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action.... If the pleading fails to establish a valid cause of action, a court shall grant a motion to strike the offending claims.”

Keane v. Fischetti, supra, at 402, 13 A.3d 1089. On the other hand, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

III

A

As previously stated, the respondent moves to strike the portions of the termination petitions in which the commissioner seeks to terminate her parental rights under § 17a–112(j)(3)(B)(i). She argues that this statute, as interpreted by our Appellate Court in In re Stephen M., 109 Conn.App. 644, 953 A.2d 668 (2008), violates her due process rights.³

Section 17a–112(j) permits the Superior Court to grant a termination of parental rights petition if it finds by clear and convincing evidence that there has been a finding of neglect in a prior proceeding and when other statutory criteria have been met.⁴ The Appellate Court's decision in In re Stephen M., supra, 109 Conn.App. at 644, 953 A.2d 668, controls this court's application of the statute. In In re Stephen M., the Appellate Court concluded that in adjudicating a petition for the termination of parental rights, “a trial court may not reconsider the issue of neglect if the children were found to be neglected in a prior proceeding. The doctrine of collateral estoppel precludes the relitigation of the finding of neglect.” Id., at 657, 953 A.2d 668. The Appellate Court has also stated that in a proceeding for termination of parental rights on the grounds stated in § 17a–112(j)(3)(B)(i), “the petitioner [does] not have to prove at the termination hearing that the children were neglected but only that the children had been found to be neglected in a prior proceeding.”

In re Joseph W., 121 Conn.App. 605, 613, 997 A.2d 512 (2010), aff'd, 301 Conn. 245, 21 A.3d 723 (2011).

According to the respondent, the court in In re Stephen M. erred in holding that collateral estoppel applies under § 17a–112(j)(3)(B)(i) to relieve DCF from proving the underlying claims of neglect in a termination proceeding, and as a result, this holding creates a constitutional infirmity in the statute. The respondent reasons as follows. The United States Supreme Court has held, and the Connecticut Supreme Court has agreed,...