Juvenile Appeal (85-BC), In re

• Decision Date: 26 February 1985
• Citation: 488 A.2d 790,195 Conn. 344
• Court: Connecticut Supreme Court
• Parties: In re JUVENILE APPEAL (85-BC) * .

Page 790

488 A.2d 790

195 Conn. 344

In re JUVENILE APPEAL (85-BC) ^*.

Supreme Court of Connecticut.

Argued Nov. 8, 1984.

Decided Feb. 26, 1985.

Frederick D. Stanek, Seymour, for appellant (grandmother).

Judith M. Earl, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen., and Paul J. Bakulski, Asst. Atty. Gen., for appellant (com'r of the dept. of children and youth services).

George R. Temple, Seymour, for appellee (mother).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal presents the question whether, under General Statutes § 46b-129, ¹ the commissioner of the department of children and youth services (DCYS) must petition to extend a commitment of custody of two minor children, who had been adjudicated neglected, when their custody was committed originally to the commissioner but subsequently had been transferred to their paternal grandmother by order of the Superior Court for Juvenile Matters.

The following facts are critical to this appeal: On February 11, 1981, the commissioner of DCYS filed in the Waterbury Superior Court for Juvenile Matters separate petitions, each alleging neglect of the two children involved in this particular dispute. ² The neglect petitions requested that both minor children, one then aged three years, nine months, and the other two years, four months, be adjudicated neglected and committed to the custody of DCYS. ³ After a hearing, the court, on September 23, 1981, found the children neglected and entered orders committing them, pursuant to General Statutes (Rev. to 1981) § 46b-129(d), to the custody of DCYS for a period not to exceed two years. ⁴ Previously, the children had been "placed" by DCYS, on January 26, 1981, with their paternal grandparents with whom they had been residing at the time of the "Order of Commitment" to DCYS. Under the "Order of Commitment" to DCYS, the children continued to reside with their paternal grandparents, although DCYS possessed "legal" custody of the children. Thereafter, on May 4, 1982, the court, acting on DCYS' "Motion for Transfer of Commitment," entered "Orders of Custody" that granted "custody guardianship" of these children to their paternal grandmother. (Emphasis in original.) DCYS continued to be involved with the case, however, by monitoring their education and therapy.

Later, the natural mother filed a "Petition for Revocation of Commitment" on June 22, 1983. ⁵ This matter came before the court on July 19, and was continued to September 20, 1983, to enable DCYS to prepare a study of the children's situation. As prepared and submitted to the Juvenile Court, the DCYS study recommended, inter alia, that certain steps be taken by the natural parents and paternal grandparents of these children, who would "continue to live with their grandparents." The DCYS study also recommended that the natural mother be allowed weekly visitation "in a structured setting" with the children. All parties apparently agreed to abide by the DCYS recommendations, which were incorporated into orders of the court. The court then continued the matter to December 14, 1983, for further review.

Thereafter, DCYS, on December 12, 1983, submitted to the court an "addendum" to its original study. This "addendum" recommended, inter alia, that the natural mother's petition for revocation of commitment be denied but that the children's commitment be retransferred to DCYS for an eighteen-month period during which time the children would continue to reside with the paternal grandparents while remaining "under the protective supervision of DCYS...." On December 14, 1983, the court requested that the paternal grandmother file a motion for clarification of the orders of custody, ⁶ which she accordingly filed on December 20, 1983, in conjunction with her motion for continuation of custody of the two children. ⁷ In response to these motions, the court sua sponte dismissed the natural mother's petition for revocation of commitment, finding that "there is no matter pending before this court, the original commitment having expired." ⁸ While no articulation of this ruling was sought, the parties agree that the court dismissed the natural mother's petition for revocation of commitment on the ground that the maximum statutory period for which the children's custody had been committed to DCYS had elapsed; General Statutes § 46b-129(d); and because of a lack of appropriate action by that agency to extend the period pursuant to § 46b-129(e), the order transferring custody of the minor children to their paternal grandmother had lapsed. Under this decision custody of these children hence reverted to their natural parents.

On appeal, both appellants, the paternal grandmother and DCYS, claim that the court erred in concluding that the "commitment" in each case had expired for failure of DCYS to petition the court for an extension of commitment in accordance with § 46b-129(e). We find error and hold that the statutory eighteen-month maximum period of commitment to DCYS does not apply to those cases in which custody of children, adjudicated neglected, has been vested pursuant to a Superior Court order in an appropriate third party under § 46b-129(d).

We recognize initially that the established public policy in this state is "[t]o protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; [and] to provide a temporary or permanent nurturing and safe environment for children when necessary...." General Statutes § 17-38a(a); In re Juvenile Appeal (83-CD), 189 Conn. 276, 283, 455 A.2d 1313 (1983); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 660, 420 A.2d 875 (1979). We are also aware that "the right to family integrity is not a right of the parents alone, but 'encompasses the reciprocal rights of both parents and children....' " (Citations omitted.) In re Juvenile Appeal (83-CD), supra, 189 Conn. 284, 455 A.2d 1313.

The sole question presented here turns primarily on the interpretation of General Statutes § 46b-129. We have said that "[t]he meaning to be given a statute is determined by legislative intent and that legislative intent must be determined by language actually used in the legislation." (Citation omitted.) Eason v. Welfare Commissioner, 171 Conn. 630, 634, 370 A.2d 1082 (1976), cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1079 (1977) (child welfare statutes construed). We accordingly examine the express language of § 46b-129.

Section 46b-129 governs petitions for adjudication of neglected children and the appropriate "commitment" of their custody. After a judicial determination that a child is "uncared-for, neglected or dependent" the Superior Court has available three possible options from which to choose regarding custody of that child: (1) to "commit [the child] to the commissioner of children and youth services"; (2) to "vest such child's or youth's care and personal custody" in a third party until the child reaches the age of eighteen; or (3) to permit the natural parent to retain custody and guardianship of the child, ⁹ with or without protective supervision by DCYS. General Statutes § 46b-129(d).

Until the enactment of Public Acts 1979, No. 79-579, no significant distinction existed, at least for the purposes of the duration of a commitment of custody, between a "commitment" to DCYS of the child's custody and the "vesting" of custody in an appropriate third party; both dispositions could continue without further subsequent action until the child reached the age of eighteen. This 1979 legislation established, however, a two-year maximum time limit as the period of the commitment of custody. Public Acts 1979, No. 79-579. ¹⁰ That time limit, which was subsequently reduced by the legislature to eighteen months; see footnote 4, supra; was placed only upon "commitments" made "to the commissioner of children and youth services." General Statutes § 46b-129(d). Child custody "vested" in appropriate third parties by the court, however, remained statutorily unrestricted in terms of any duration on the period of such custody.

This 1979 provision, inter alia, required the "commissioner of children and youth services," at least "ninety days before the expiration" of "each two-year commitment made in accordance with the provisions of subsection (d) of this section [46b-129]," to petition the court to "(1) revoke such commitment"; "(2) terminate parental rights" in accordance with § 17-43a; or "(3) extend the commitment beyond such two-year period on the ground that an extension is in the best interest of the child." General Statutes (Rev. to 1981) § 46b-129(e). The 1979 amendment by its terms applied only to commitments "made in accordance with the provisions of subsection (d)" and was not made applicable by the legislature to § 46b-129(g). No "ninety day rule" or requirement similar to § 46b-129(e) was imposed by the General Assembly on court orders entered pursuant to the "transfer" or "termination" of commitment provision of § 46b-129(g).

With that statutory scheme in mind, we examine the posture of the parties on appeal. The natural mother contends that the trial court did not err because the maximum period of commitment to DCYS, without any judicially approved extension, is eighteen months under § 46b-129(d); no such extension was requested by DCYS in accordance with § 46b-129(e), and, therefore, the original commitment of the children to DCYS expired. She further argues that the transfer of commitment to the paternal grandmother did not obviate the requirement that DCYS petition the court for an extension of commitment pursuant to § 46b-129(e)(3). The paternal grandmother, on the other hand, argues that the court, by transferring "custody-guardianship" of the children to her, "vest...