DocketNumber: 14799
Citation Numbers: 230 Conn. 459
Judges: Berdon, Palmer
Filed Date: 8/2/1994
Status: Precedential
Modified Date: 9/8/2022
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,
The relevant facts and procedural history are summarized as follows.
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).
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),
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.
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 respon
Because both a guardian and a guardian ad litem already had been appointed to represent Christopher’s interests in the removal proceedings, the trial court was required to determine whether exceptional circumstances existed to warrant Christopher’s representation by a next friend and, if so, whether the plaintiff was a proper person to serve in that capacity. The trial court failed to make such a determination, however, because it concluded that an application for a writ of
The Appellate Court concluded that the plaintiff had standing to serve as Christopher’s next friend as a matter of law. We do not agree. In contesting the standing of the plaintiff to appear on Christopher’s behalf, the defendant claimed that the plaintiff’s interests were
We conclude, therefore, that the trial court must determine whether there were exceptional circum
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand it to the trial court to determine whether the plaintiff had standing to bring the declaratory judgment action on Christopher’s behalf.
In this opinion Peters, C. J., and Norcott and Katz, Js., concurred.
Denise Orsi brought this action in her individual capacity and as the next friend of Christopher C. In this opinion-we will refer to Orsi as the plaintiff.
The department of children and youth services is now the department of children and families.
We granted certification limited to the following questions: (1) “Does a foster parent have standing to make the legal claims of a foster child in [his or] her care?”; and (2) “Does the failure to provide a pre-removal administrative hearing procedure to foster parents in back-to-family placements violate the foster child’s constitutional rights?” Orsi v. Senatore, 228 Conn. 908, 635 A.2d 1228 (1993).
The facts and procedural history are set forth in detail in the decision of the Appellate Court. Orsi v. Senatore, supra, 31 Conn. App. 402-11.
General Statutes § 46b-129 (d) provides in relevant part: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the commissioner of children and youth services for a maximum period of eighteen months, unless such period is extended in accordance with the provisions of subsection (e) of this section, provided such commitment or any extension thereof may be revoked or parental rights terminated at any time by the court, or the court may vest such child’s or youth’s care and personal custody in any private or public agency which is permitted by law to care for neglected, uncared-for or dependent children or youth or with any person found to be suitable and
General Statutes § 52-466 (i) provides: “A foster parent or an approved adoptive parent shall have standing to make application for a writ of habeas corpus regarding the custody of a child currently or recently in his care for a continuous period of not less than ninety days in the case of a child under three years of age at the time of such application and not less than one hundred and eighty days in the case of any other child.”
Section 17-37-4 of the Regulations of Connecticut State Agencies provides in relevant part: “(a) right to a removal hearing. (1) An approved or licensed foster parent may request a Removal Hearing if the child has been in continuous placement in the foster home for one year or more. Exception: The one year requirement shall not apply in cases where the foster parent is a relative. (2) Except in cases of imminent danger, the department shall notify the foster parent in writing at least 10 days before removal of its decision to remove the child from the foster home and of the foster parent’s right to a removal hearing if he or she disagrees with the plan. . . .
“(c) DENIAL OF a request for a removal hearing. A Removal Hearing will be denied by the hearings unit when (1) The child is being placed directly with the parent, parents, legal guardian, or other relative. . . .”
The trial court concluded that the plaintiffs only recourse to challenge Christopher’s removal and placement was a writ of habeas corpus under General Statutes § 52-466 (f). Because the court determined that the plaintiff did not have standing as a matter of law to bring an action on Christopher’s behalf, it did not conduct an evidentiary hearing on the defendant’s motion to strike.
Christopher was thereupon returned to the care of the grandmother. He has remained committed, however, to the custody of the defendant.
The plaintiff has not appealed from the denial of her application for a writ of habeas corpus, so neither the propriety of Christopher’s placement with the grandmother nor the need for a preremoval hearing is any longer at issue. We agree with the Appellate Court, however, that the claim that it violates Christopher’s constitutional rights to remove him from foster parents and return him to his biological family without a preremoval hearing in which his foster parents could participate falls under the “capable of repetition but evading review” exception to the mootness doctrine. Orsi v. Senatore, supra, 31 Conn. App. 423-26. Although generally “ ‘it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow’ "; Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); appellate review may be appropriate “where the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration.” Id., 572. “In deciding whether to invoke this mitigating principle, we have considered not only the practical difficulties of timely judicial review but also (1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state’s penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future.” (Internal quotation marks omitted.) Moshier v. Goodnow, 217 Conn. 303, 307, 586 A.2d 557 (1991).
All of these mitigating factors are present in this case. The plaintiff’s challenge to the constitutionality of the regulations pursuant to which the department removes a foster child from foster care and places that child with a family member raises an important public issue. Our resolution of that issue necessarily will have a significant effect on the procedures followed by the department in returning foster children to their biological families. Finally, as the Appellate Court concluded, “[Christopher] is still committed to the custody of [the department], which has complete control over his placement. In the event his grandmother becomes unable or unwilling to care for him, [the department] may place him with another foster family and then with another family member without affording any pre-removal notice or hearing. Under the circumstances, we cannot conclude that there is no ‘possibility of a similar effect on [Christopher] himself in the future.’ Perry v. Perry, [222 Conn. 799, 803, 611 A.2d 400 (1992)] .... [B]ecause [the department] has complete control over Christopher’s placement, it is also possible that any contested placement would terminate before issues related to it could be fully litigated.” Orsi v. Senatore, supra, 31 Conn. App. 426. We conclude, therefore, that this appeal is not moot.
The Appellate Court did not consider the plaintiffs state constitutional claim because the plaintiff had failed to provide an independent analysis under the state constitution. Orsi v. Senatore, supra, 31 Conn. App. 427 n.19.
The Appellate Court also concluded that “when a foster child reaches the critical stage at which [the department] plans to remove the child from a foster home in which he or she has resided for one year or longer, the child’s counsel and guardian ad litem must have some notice of that plan before it is carried out.” Orsi v. Senatore, supra, 31 Conn. App. 438-39.
We disagree with the defendant that our decision in Nye v. Marcus, 198 Conn. 138, 502 A.2d 869 (1985), forecloses the possibility that a foster parent may bring an action on behalf of his or her foster child. In Nye, a case decided before the legislature adopted General Statutes § 52-466 (f), foster parents who were seeking to adopt their foster child filed an application for a writ of habeas corpus to challenge the decision of the department of children and youth services, the foster child’s guardian, to name another couple as the child’s adoptive parents. Reasoning that the foster parent’s interests might well conflict with the best interests of the child, we held that the foster parents were “not an appropriate neutral party” to assert either their own interest in the maintenance of their family relationship with the foster child or the child’s interest in remaining in their foster home. Id., 145. Our holding in Nye, however, should not be read as determining that, when foster children are to be removed from the foster home, foster parents always lack standing to assert the children’s rights. In this case, the plaintiff has asserted that Christopher has a constitutional interest in not being returned to his biological relatives without affording his foster parents a preremoval hearing. As in Nye, the plaintiff may, however, not be an appropriate person to raise such a claim on Christopher’s behalf, because her desire to have a preremoval hearing may conflict with Christopher’s best interests. Nonetheless, the trial court must afford the plaintiff an opportunity to demonstrate that she is an appropriate person to raise Christopher’s potential claim, and that, notwithstanding the appointment of both a guardian and a guardian ad litem for Christopher, exceptional circumstances exist to warrant the foster parent’s representation of the foster child as next friend.
The Appellate Court relied on Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. 257, for its determination that exceptional circumstances existed to warrrant the filing of the declaratory judgment action by the plaintiff as Christopher’s next friend. In Cottrell, we concluded that exceptional circumstances existed to warrant an action by the plaintiff’s next friend when both the guardian ad litem and the conservator of the plaintiff, who had been adjudged incompetent, refused to take an appeal from the Probate Court’s account of the administration of the plaintiff’s deceased mother’s estate, notwithstanding the plaintiff’s request that an appeal be taken. We held that when “those appointed to protect the interest of an incompetent fail to appeal from a decision in which the incompetent has a real interest, an action may be brought by a next friend in order that a court may review the substantive issues involved.” Id., 265. Our holding in Cottrell, however, should not be read as determining that when a ward’s court-appointed guardian decides not to bring a claim or pursue an appeal, any person may appear as the ward’s next friend to litigate the issue. Before a person may appear as next friend, the trial court must determine that the person is appropriate to represent the interests of the ward, and that exceptional circumstances exist to warrant the representation.