Orsi v. Senatore
| Decision Date | 29 April 1993 |
| Docket Number | No. 10363,10363 |
| Citation | 626 A.2d 750,31 Conn.App. 400 |
| Court | Connecticut Court of Appeals |
| Parties | Denise M. ORSI et al. v. Rose A. SENATORE, Commissioner of Children and Youth Services. |
Linda Pearce Prestley, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Carolyn K. Querijero and Susan T. Pearlman, Asst. Attys. Gen., for appellee (defendant).
Before FOTI, LAVERY and LANDAU, JJ.
This is an appeal from the judgment of the trial court in effect dismissing the third count of the plaintiffs' complaint, which sought a declaratory judgment. The court denied relief under that count because it found that the named plaintiff, Denise M. Orsi, lacked standing. We reverse the judgment and grant the requested declaratory relief.
The complaint was brought against the commissioner of the department of children and youth services (commissioner or DCYS) following the commissioner's proposed removal of Christopher C. from foster care. Our review of the complete record reveals the following facts and procedural history.
Christopher was born at Bristol Hospital on February 12, 1989, to a single, fifteen year-old mother, Deborah C. At birth, Christopher had respiratory problems requiring surgery. He spent his first several months of life hospitalized at the University of Connecticut Health Center. Shortly after his discharge, he was rehospitalized because his mother had over suctioned him and he was bleeding from the area of his tracheostomy. DCYS thereupon applied for an order of temporary custody, which was granted in May, 1989. At the time, Deborah C. and Stephen P., Christopher's father, admitted to allegations of homelessness and neglect. The Superior Court at Plainville issued a protective supervision order on May 31, 1989, to ensure that Christopher would have an appropriate and safe living environment. The court granted partial custody of Christopher to Barbara R., his maternal grandmother. Attorney Following his second discharge from the hospital in June, 1989, Christopher was released to the care of Deborah C. and Barbara R., with whom Deborah then resided. Between June and September, 1989, a private duty nurse provided services to assist with Christopher's routine and special medical needs. Protective supervision by DCYS ended in early December, 1989. Shortly thereafter, however, Barbara R. complained to DCYS of the violent relationship between Christopher's parents. At the request of DCYS, "Homebuilders" (Klingberg Family Protective Services) worked with Deborah C. and Barbara R. to keep Christopher in his grandmother's home and to prevent his placement in foster care. In early March, 1990, however, the relationship between Deborah C. and Barbara R. became strained, and Barbara forced Deborah, then pregnant with her second child by Stephen P., and thirteen month old Christopher to leave her home. Deborah C. then voluntarily placed Christopher in foster care and DCYS appointed Denise M. Orsi and her husband to be the child's foster parents. The child made excellent developmental progress and responded well to the stability and nurturing provided by his foster family.
Stephen L. Mangan was appointed to represent Christopher at these proceedings.
Over the next months, DCYS provided an array of family services in an effort to reunite Christopher and his mother. 1 Deborah C. was referred to Casey Family Services (Casey), which provided in-home services including parent education and support, clinical counseling, respite and homemaking assistance, and transportation. During this period, Christopher was allowed to visit Deborah C., who then resided with Stephen P.'s parents. At one point, however, a relative of the child complained to DCYS that Stephen P. was abusive toward Christopher during these visits. Stephen P. had also had an altercation with Deborah C. that resulted in his arrest in June, 1990.
In August, 1990, DCYS again sought an order of temporary custody, which was granted by the Juvenile Court on October 3, 1990. The bases for the order were that Christopher was neglected, in that he was being permitted to live under conditions injurious to his well-being, and that he was uncared for, in that he was homeless. Concern arose over the child's safety on unsupervised weekend visits, due to reports of family violence. In December, 1990, a DCYS social worker prepared a report recommending that Christopher be committed to the custody of DCYS for eighteen months in view of ongoing concerns involving Stephen P.'s violent temper tantrums and abusive behavior. 2 A court-ordered psychological evaluation concluded that neither Deborah C. nor Stephen P. was capable of taking care of Christopher.
In January, 1991, the trial court found Christopher to be uncared for and neglected, and committed him to the custody and guardianship of DCYS for the statutory period of eighteen months, pursuant to General Statutes § 46b-129(d). 3 Christopher In April, 1991, Casey family counselors notified Orsi that Christopher would be removed from the foster home and placed in the care of Barbara R. Concerned that the proposed placement would not be in Christopher's best interests, Orsi immediately filed suit in the Superior Court for the judicial district of Hartford-New Britain at Hartford on May 3, 1991. Orsi's concern centered on the fact that while his grandmother would be at work, Christopher would be cared for by Barbara R.'s brother-in-law, who lived a few houses away from Barbara; Deborah C., then seventeen and pregnant with her third child by Stephen P., was living in her own apartment in the brother-in-law's house. In her complaint, Orsi alleged that there would be no way for DCYS to prevent Christopher's parents from participating in his care, and, thus, the proposed placement was tantamount to returning the child to the environment from which he had earlier been removed.
continued in the [31 Conn.App. 405] care of the Orsis, and Deborah C. was permitted only strictly supervised visits with him. Stephen P. was not permitted to visit the child. Shortly thereafter, Barbara R. expressed interest in providing a home for her grandson. DCYS and Casey both supported this arrangement. Denise Orsi, who objected to this plan because of her fears for the child's safety, succeeded in having DCYS delay the removal, to allow for an easier transition for Christopher
Orsi's three count complaint contained an application for a writ of habeas corpus pursuant to General Statutes § 52-466(f), 4 which explicitly confers standing upon foster parents to challenge a removal action by DCYS. The complaint also sought an injunction prohibiting the removal of Christopher by DCYS until it could be determined whether the removal was in his best interests, and a declaratory ruling on the constitutionality of § 17-37-4(c) of the Regulations of Connecticut State Agencies, which forecloses foster parents from an administrative hearing when a child is removed from their home and returned to a family member. 5 The thrust of this On May 6, 1991, the trial court, Maloney, J., entered an ex parte order temporarily enjoining DCYS from removing Christopher from Orsi's care. On May 20, 1991, the court, O'Neill, J., entered an order granting a motion by DCYS to transfer the case to "the Superior Court for Juvenile Matters at Plainville," which had entered the original neglect finding. The trial court also granted the motion to intervene filed by attorney Stephen L. Mangan, who had represented Christopher at the neglect proceedings and had been appointed his counsel and guardian ad litem. 6
third claim was that the challenged regulation is unconstitutional on its face because it "denies a child notice and opportunity to be heard" when DCYS determines that a back-to-family placement should be made. Orsi's complaint indicated explicitly that she did [31 Conn.App. 408] not seek custody of Christopher for herself or her husband, but rather that she sought to enforce the child's own state and federal constitutional rights against arbitrary determinations of his best interests
On May 28, 1991, Orsi filed an amended complaint to make it clear that she was bringing the declaratory judgment portion of the complaint on behalf of Christopher, as his prochein ami or next friend. Despite Judge O'Neill's ruling that Mangan was counsel and guardian ad litem for Christopher, Orsi continued to maintain that she represented him.
On June 5, 1991, after the transfer to Superior Court at Plainville, DCYS filed a motion to strike the next friend allegations of the complaint, on the ground that Orsi could not serve as Christopher's next friend. The court, Brenneman, J., ruled on this motion immediately, despite objection by Orsi's counsel, and determined that Orsi lacked standing as next friend. This ruling, dated June 5, 1991, effectively struck the declaratory judgment portion of the complaint. On June 20, 1991, the trial court dissolved the temporary injunction that had been entered by Judge Maloney and also ruled against Orsi on the habeas count of the petition. The court found that Orsi had failed to establish that the return of Christopher to the care of Barbara R. was not in his best interests. Orsi has not appealed from that decision.
Christopher was immediately removed from the Orsi home and placed with his grandmother, Barbara R. He remains committed to the custody of DCYS.
Orsi, denominated "Denise M. Orsi, P.P.A. 'Baby Doe,' " filed a timely appeal On appeal, Orsi claims that the trial court improperly (1) denied the declaratory judgment count of the complaint, (2) denied the declaratory judgment count, sua sponte, without holding judicial proceedings on the matter, (3) denied Orsi the right to conduct discovery relative to the declaratory judgment count,...
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