Orsi v. Senatore, 14799
| Citation | 645 A.2d 986,230 Conn. 459 |
| Decision Date | 02 August 1994 |
| Docket Number | No. 14799,14799 |
| Court | Supreme Court of Connecticut |
| 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., Susan T. Pearlman, and Carolyn Querijero, Asst. Attys. Gen., for appellant (defendant).
Susan K. Smith, with whom were Hope C. Seeley and, on the brief, Kathleen M. Paul, Certified Legal Intern, for appellee (named plaintiff).
Lynn B. Cochrane and Jamey Bell, filed a brief for the Danbury Regional Com'n on Child Care, Rights and Abuse et al. as amici curiae.
Before PETERS, C.J., and BERDON, NORCOTT, KATZ and PALMER, JJ.
The dispositive issue raised by this certified appeal is whether a foster parent has standing to bring an action on behalf of his or her foster child even though that child has been represented by a court-appointed guardian. The trial court determined that the plaintiff, Denise M. Orsi, 1 the foster parent of Christopher C., could not, as a matter of law, bring an action on Christopher's behalf to challenge the constitutionality of the regulations under which the defendant, Rose A. Senatore, the commissioner of the department of children and youth services (department), 2 had removed Christopher from the plaintiff's care and had placed him with his maternal grandmother. On appeal, the Appellate Court reversed the judgment of the trial court, concluding that the plaintiff had standing to challenge the defendant's decision placing Christopher with his grandmother. Orsi v. Senatore, 31 Conn.App. 400, 626 A.2d 750 (1993). We granted certification to appeal from the judgment of the Appellate Court 3 and now reverse. We conclude that the case must be remanded to the trial court for its determination of whether, under the facts and circumstances of this case, the plaintiff had standing to file the declaratory judgment action on Christopher's behalf as his next friend.
The relevant facts and procedural history are summarized as follows. 4 On February 12, 1989, Christopher was born to Deborah C. (mother), a single, fifteen year old woman. Christopher spent the first several months of his life in the hospital due to respiratory problems requiring surgery. Shortly after his discharge, Christopher was rehospitalized as a result of his mother's failure to administer proper medical care. The defendant thereupon sought an order of temporary custody. At that time, Christopher's mother and his father, Stephen P., admitted to allegations of homelessness and neglect. On May 31, 1989, the court issued an order of protective supervision to ensure that Christopher would have an appropriate and safe living environment, and granted partial custody of Christopher to his grandmother, with whom his mother resided. The court also appointed attorney Stephen L. Mangan to represent Christopher at the proceedings concerning Christopher's custody and placement.
In June, 1989, Christopher was discharged from his second hospitalization and released to the joint care of his grandmother and mother. Because of his mother's progress in caring for Christopher, protective supervision was terminated in December, 1989. In March, 1990, however, the grandmother forced the mother, then again pregnant, and thirteen-month-old Christopher, to leave her home. The mother voluntarily placed Christopher in foster care, and the defendant appointed the plaintiff and her husband to be Christopher's foster parents.
Over the next several months, the defendant provided a range of family services in an effort to reunite Christopher with his mother, who was allowed to visit Christopher on a regular basis. Due to concerns about Christopher's safety and well-being, however, the defendant again applied for an order of temporary custody, which the court granted on October 3, 1990. In January, 1991, the court found Christopher to be uncared for and neglected, and committed him to the custody and guardianship of the defendant for a period of eighteen months pursuant to General Statutes § 46b-129(d). 5 The mother was permitted only strictly supervised visits with Christopher, who continued in the care of the plaintiff.
In April, 1991, the defendant informed the plaintiff that Christopher would be removed from her foster home and placed in the care of the grandmother. The plaintiff, concerned that the mother would have access to Christopher while the grandmother was at work, immediately brought an action seeking: (1) a writ of habeas corpus under General Statutes § 52-466(f), 6 which confers standing upon foster parents to challenge a removal action by the department; (2) an injunction prohibiting the removal of Christopher by the defendant until it could be determined whether the planned removal and placement were in his best interests; and (3) a declaratory ruling on the constitutionality of § 17-37-4(c) of the Regulations of Connecticut State Agencies, which provides that a request by a foster parent for an administrative hearing will be denied when the foster child is to be placed with a family member. 7 With respect to her application for a declaratory judgment, the plaintiff claimed that the challenged regulation violated both the state and federal constitutions in that it denied a child notice and opportunity to be heard when the department decides to place that child with a family member. The plaintiff indicated that she was not seeking custody of Christopher, but rather that she was only seeking, as Christopher's next friend, to enforce Christopher's constitutional rights.
On May 6, 1991, the trial court entered an ex parte order temporarily enjoining the defendant from removing Christopher from the plaintiff's care. Shortly thereafter, the court also granted the motion to intervene of attorney Mangan, who had been appointed Christopher's guardian ad litem and who had represented Christopher at the neglect proceedings.
On June 5, 1991, the defendant filed a motion to strike the next friend allegations of the declaratory judgment portions of the complaint on the ground that the plaintiff lacked standing to raise a legal claim on Christopher's behalf. The trial court concluded, as a matter of law, that the plaintiff could not bring an action on Christopher's behalf and, accordingly, granted the defendant's motion to strike. 8 On June 20, 1991, the trial court dissolved the temporary injunction and denied the plaintiff's application for a writ of habeas corpus on the ground that the plaintiff had failed to establish that Christopher's return to the care of the grandmother was not in his best interests. 9
The plaintiff appealed from the trial court's ruling that struck her request for a declaratory judgment. 10 The Appellate Court determined that, contrary to the conclusion of the trial court, the plaintiff has standing to bring the declaratory judgment action on Christopher's behalf. The Appellate Court further concluded that § 17-37-4(c) of the Regulations of Connecticut State Agencies violates the federal constitution 11 because it deprives a child who has been in foster care for one year or more of an administrative hearing to challenge the decision of the department to place that child with a family member. 12
The defendant claims that the Appellate Court improperly determined that the plaintiff had standing to serve as Christopher's next friend for the purpose of challenging the constitutionality of the regulations pursuant to which Christopher was removed from the plaintiff's care and placed with his grandmother. The defendant further contends that the trial court properly concluded that the plaintiff's only recourse to contest Christopher's family placement was an application for a writ of habeas corpus under § 52-466(f). We agree with the defendant that the Appellate Court improperly determined that the plaintiff had standing as a matter of law to serve as Christopher's next friend. We disagree with the defendant, however, that the plaintiff's status as a foster parent necessarily precluded her from serving as the child's next friend. We therefore conclude that the case must be remanded to the trial court for a hearing on whether, under the facts and circumstances of this case, the plaintiff had standing to bring the declaratory judgment action on Christopher's behalf as next friend.
It is well established that a child may bring a civil action only by a guardian or next friend, whose responsibility it is to "ensure that the interests of the ward are well represented." Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 261, 398 A.2d 307 (1978); Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970). When a guardian has been appointed to protect the interests of a child, the guardian is usually the proper person to bring an action on behalf of the child. Williams v. Cleaveland, 76 Conn. 426, 434, 56 A. 850 (1904). There are, however, "certain exceptional circumstances"; Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. at 263, 398 A.2d 307; when a child "may properly sue by next friend, notwithstanding the existence of such guardian, as when the guardian is absent, or is unwilling or unable to institute or prosecute the required action or appeal, and especially when, though declining to take such action himself, he does not forbid such proceeding, or when he is disqualified by interest hostile to that of the infant, or is for other reasons an improper or unsuitable person to prosecute such actions on behalf of the ward." Williams v. Cleaveland, supra, 76 Conn. at 432, 56 A. 850. Although generally a person who brings an action as next friend need not obtain prior authorization from the court to do so; id., at 433, 56 A. 850; McCarrick v. Kealy, 70 Conn. 642, 646, 40 A. 603 (1898); the court must determine whether the person seeking to represent the child as next friend...
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