DocketNumber： SC 15886
Citation Numbers： 247 Conn. 1
Judges： Berdon, Borden, Palmer
Filed Date： 9/15/1998
Status： Precedential
Modified Date： 9/8/2022
Opinion
The petitioner, the commissioner of the department of children and families (commissioner), appeals from the portion of the trial court’s judgment permanently enjoining her from filing, in Superior Court, petitions for the termination of parental rights (termination petitions) that have been prepared, signed and filed by persons who are not admitted to the practice of law. We reverse the judgment of the trial court insofar as it enjoins the commissioner’s nonlawyer representatives from preparing, signing and filing termination petitions.
The relevant facts and procedural history are undisputed. On February 20,1997, a social worker employed by and acting on behalf of the department of children
Following a trial on the merits, the trial court, in a memorandum of decision dated January 2, 1998, determined that Darrel S. had completely abandoned the child and that Beatrice C. had no ongoing relationship with her, both proper statutory grounds for the termination of parental rights. See General Statutes § 17a-112 (c).
In support of its decision to enjoin the drafting, signing and filing of termination petitions by nonlawyers, the court remarked, first, on the serious nature of the rights implicated in the context of termination petitions, and the history of problems that the court had observed as a result of faulty pleadings prepared by department personnel not admitted to the practice of law.
The court next examined the nature of the individual tasks relating to termination petitions that are performed by nonlawyers and concluded that such activities constituted the practice of law by persons who are not attorneys in violation of § 51-88.
The commissioner appealed to the Appellate Court from that portion of the judgment of the trial court ordering her to cease and desist from the unauthorized practice of law,
We conclude, first, that the trial court improperly determined that § 17a-112 does not authorize the enjoined activities.
There is nothing in the unambiguous language of either § 17a-112 (a) or § 46b-129 (a) to suggest that, although the commissioner or her designee may file petitions thereunder, only attorneys are authorized to draft and sign such petitions. “In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended.” (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v.
We also disagree with the trial court that § 17a-47
Furthermore, as we previously have indicated, Practice Book § 26-1 (l)
Therefore, even if it is assumed, arguendo, that the activities enjoined by the trial court constitute the practice of law, such activities do not violate Practice Book § 29 because they are not “unauthorized” within the meaning of that Practice Book section. Similarly, because the legislature also has expressly authorized the activities enjoined by the trial court, they do not violate the general proscription of § 51-88 against the practice of law by nonlawyers. It hardly would comport with logic to conclude that activities for which the legislature has made express statutory provision nevertheless violate a more general provision. “It is a well-settled principle of [statutory] construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” (Internal quotation marks omitted.) State v. State Employees’ Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997). Thus, in light of the fact that both the legislative and judicial branches of our government have expressly authorized the activities enjoined by the trial court, they do not, ipso facto, violate either § 51-88 or Practice Book § 29. Accordingly, we conclude that the trial court improperly rendered judgment enjoining the commissioner or
The portion of the judgment enjoining the commissioner from filing petitions for the termination of parental rights that have been prepared, signed and filed by persons not admitted to the practice of law is reversed.
In this opinion BORDEN, NORCOTT and KATZ, Js., concurred.
General Statutes (Rev. to 1997) § 17a-112 provides in relevant part: “Termination of parental rights of child committed to commissioner, (a) In respect to any child in the custody of the Commissioner of Children and Families in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in a pending or prior proceeding, or an attorney appointed by the Superior Court on its own motion, or an attorney retained by such child after attaining the age of fourteen, may petition the court for the termination of parental rights with reference to such child.”
The legislature recently amended § 17a-112. See Public Acts 1998, No. 98-241, § 8. The 1998 amendments to § 17a-112 are not relevant to this appeal. Hereafter, all references in this opinion to § 17a-112 are to the 1997 revision.
Darlene C. has been in the custody of the commissioner and has remained in foster care since immediately after her birth in January, 1994.
General Statutes § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 that such efforts are not appropriate, (2) that termination is in the best interest of the child, and (3) that over an extended period of time, which except as provided in subsection (d) of this section shall not be less than one year, provided such time limit shall not apply to subparagraph (e) of this subsection: (A) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; [or] . . . (D) [t]here is no ongoing parent-child relationship
The judgment of the trial court also provided that, in view of the fact that the commitment of Darlene C. was to expire on February 17, 1998, “[the] child remains committed to the Commissioner of the Department of Children and Families.” No appeal has been taken from that portion of the judgment.
Practice Book § 1023.1, now Practice Book § 26-1, provides in relevant part: “Definitions Applicable to Proceedings on Juvenile Matters”
“(l) ‘Petition’ means a formal pleading, executed under oath alleging that the respondent is within the court’s authority to adjudicate the matter which is the subject of the petition by reason of cited statutory provisions and seeking a disposition. Except for a petition for erasure of record, such petitions invoke a judicial hearing and shall be executed by any one of the parties authorized to do so by statute, provided a delinquency petition may be executed by either a probation officer or juvenile prosecutor.” (Emphasis added.)
The two statutory provisions that authorize the termination of parental rights, General Statutes §§ 17a-112 (a) and 45a-715, specify that the procedure shall be initiated by means of petition. Practice Book § 35-1, formerly Practice Book § 1055.1, contains the same requirement.
The commissioner subsequently filed a corrected termination petition with respect to Darlene C.
General Statutes § 51-88 provides in relevant part: “Practice of law by persons not attorneys, (a) Aperson who has not been admitted as an attorney under the provisions of section 51-80 shall not: (1) Practice law or appear as an attomey-at-law for another, in any court of record in this state, (2) make it a business to practice law, or appear as an attorney-at-law for another in any such court, (3) make it a business to solicit employment for an attomey-at-law, (4) hold himself out to the public as being entitled to practice law, (5) assume to be an attorney-at-law, (6) assume, use or advertise the title of lawyer, attorney and counselor-at-law, attorney-at-law, counselor-at-law, attorney, counselor, attorney and counselor, or an equivalent term, in such manner as to convey the impression that he is a legal practitioner of law, or (7) advertise that he, either alone or with others, owns, conducts
“(c) Any person who violates any provision of this section shall be deemed in contempt, of court, and the Superior Court shall have jurisdiction in equity upon the petition of any member of the bar of this state in good standing or upon its own motion to restrain such violation.”
Practice Book § 29 provides in relevant part: “The superior court . . . may, for just cause, punish or restrain any person engaged in the unauthorized practice of law.”
It is undisputed that the current commissioner of the department, Kristine D. Ragaglia, is an attorney admitted to the practice of law in this state. Consequently, the order does not preclude her from personally drafting, signing and filing termination petitions.
To illustrate this point, the court, identified four cases over which it had presided since 1993 in which it had observed that neglect or termination petitions, drafted and filed by social workers who were not attorneys, had been flawed. See In re Victor G., Superior Court, judicial district oí Middle-sex, Juvenile Matters, Child Protection Session at Middletown, Docket No. UO6-CP95-00210 (November 13, 1997) (improper ground for termination pleaded); In re Cassandra B., Superior Court, judicial district of Middlesex, Juvenile Matters, Child Protection Session at Middletown, Docket No. Tll-CP96-000141 (November 4,1997) (three of four possible grounds for termination alleged, at least one without factual or legal basis); In re Sarah Ann K, Superior Court, judicial district of Middlesex, Juvenile Matters, Child Protection Session at Middletown, Docket No. CP94-000507A (January 29, 1997) (although nearly all grounds for termination of parental rights were alleged, most were inappropriate); In re Janie Marie W., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. SCJM
The trial court’s statements were based solely upon the court’s own experiences in juvenile matters. No hearing was conducted on the issue of injunctive relief because, as we indicated above, the court, sua sponte and without notice to the parties, rendered judgment enjoining the commissioner from filing termination petitions drafted, signed and filed by nonlawyers.
See footnote 7 of this opinion.
The court also observed that, although nonlawyers routinely draft and file petitions on behalf of the commissioner, “it is the custom and practice
General Statutes § 17a-47 provides: “There shall be a legal division which shall consist of attorneys-at-law assigned to each regional office of the department, who shall be assistant attorneys general on the staff and under the direct supervision of the Attorney General. Said division shall diligently prosecute petitions of neglect giving priority to petitions which allege child abuse as the grounds of neglect. The Department of Children and Families shall cooperate with such attorneys in preparation of their cases and shall render such assistance to them as shall be necessary to protect the best interest of the child named in the petition.”
The permanent injunction constituted a final judgment for purposes of appeal. See, e.g., Stamford v. Kovac, 228 Conn. 95, 96-97, 634 A.2d 897 (1993); Doublewal Corp. v. Toffolon, 195 Conn. 384, 390, 488 A.2d 444 (1985).
See footnote 1 of this opinion.
The text of Practice Book § 26-1 (l) is identical to that of its predecessor, Practice Book § 1023.1 (l). See footnote 5 of this opinion.
The commissioner maintains that, even though the injunction issued by the trial court applies only to termination petitions, the reasoning of the court applies with equal force to neglectpetitions. In support of her contention, the commissioner underscores the fact that the trial court, in its memorandum of decision, characterized the question that it was deciding in broad terms, namely, “whether social workers should be permitted to continue to file petitions in the Superior Court for Juvenile Matters.” (Emphasis added.) Moreover, the court, in its discussion of the history of the preparation of petitions and pleadings by department personnel not admitted to the practice of law, purported to identify problems with respect to the filing of neglect petitions by such persons. See footnote 10 of this opinion. Furthermore, the court relied on § 17a-47; see footnote 14 of this opinion; which covers only neglect petitions, in support of its conclusion that the legislature has limited those who may “do the legal work” associated with termination petitions to attorneys. For the reasons set forth by the commissioner, we agree with her claim regarding the applicability of the trial court’s opinion to neglect petitions. For the same reasons, our determination regarding the authority of the commissioner’s nonlawyer designees to prepare and file termination petitions is equally applicable to neglect petitions.
Neither the respondents nor the attorney for Darlene C. filed a brief in support of the trial court’s judgment with respect to the injunction. One day prior to oral argument, however, the Center for Children’s Advocacy, Inc. filed a motion seeking permission to file an amicus curiae brief in support of the trial court’s issuance of the injunction, which we granted immediately prior to the commencement of oral argument in this case. We thereafter granted the applications of Greater Hartford Legal Assistance, Inc., New Haven Legal Assistance Association, Inc., Connecticut Legal Services, Inc., and Children’s Law Center, Inc. to join the brief of the Center for Children’s Advocacy. None of the amici curiae, however, requested permission to participate at the oral argument.
Because we conclude that these activities are expressly authorized not only by statute but by Practice Book section promulgated by the judges of the Superior Court acting on behalf of the judicial branch, there is no separation of powers violation.
Accordingly, we need not express an opinion about whether these activities constitute the practice of law. Other considerations, moreover, counsel against deciding this question. First, the trial court made its determination sua sponte and without providing the commissioner notice or an opportunity to be heard on the issue. Second, the commissioner is the only party to this appeal. Third, although the Center for Children’s Advocacy, Inc. filed an amicus curiae brief, that brief devotes less than one full page to the question of whether the conduct at issue in this case constitutes the practice of law.
Although we need not reach the commissioner’s fundamental fairness claim, we nevertheless express our disapproval of the procedure employed by the trial court in rendering an injunction, sua sponte, without first affording the parties notice and an opportunity to be heard. We do not doubt that the action of the trial court, in issuing an injunction against the commissioner, was well intentioned. As we have noted previously in analogous circumstances, however, “[b]asic principles of courtesy and fairness govern the conduct of courts as well as that of litigants and their counsel. The trial court’s conduct did not comport with these principles.” Sassone v. Lepare, 226 Conn. 773, 777, 629 A.2d 357 (1993) (trial court determined that state prejudgment remedy statutes were unconstitutional without first affording parties opportunity to present argument).
We note that the trial court’s discussion of this issue is limited to the assertion that “[t]he statutes authorizing the Commissioner of the Department of Children and Families to file petitions in the Superior Court do not specifically authorize social workers to do the legal work.”
General Statutes § 17a-3 provides in relevant part: “Powers and duties of department. Master plan. The department shall plan, create, develop, operate or arrange for, administer and evaluate a comprehensive and integrated state-wide program of services ... for children and youth . . . who are . . . abused, neglected or uncared for, including all children and youth who are or may be committed to it by any court . . . .”
See footnote 1 of this opinion.
General Statutes § 46b-129 provides in relevant part: “Commitment of child or youth. Petition for neglected, uncared-for, dependant child or youth, (a) Any selectman, town manager, or town, city, or borough welfare department, any probation officer, the Connecticut Humane Society, or the Commissioner of Social Services, the Commissioner of Children and Families or any child-caring institution or agency approved by the Commissioner of Children and Families, a child or his representative or attorney or a foster parent of a child, having information that a child or youth is neglected, uncared-for or dependent, may file with the Superior Court which has venue over such matter a verified petition plainly stating such facts as bring the child or youth within the jurisdiction of the court as neglected, uncared-for, or dependent . . . .”
General Statutes § 17a-6 provides in relevant part: “The commissioner or his designee shall . . . (n) [h]ave any and all powers and duties as are necessary to administer the department and implement the purposes of sections 17a-1 to 17a-26, inclusive, and 17a-28 to 17a-49, inclusive . . . .”
See footnote 14 of this opinion.
General Statutes § 1-1 (a) provides in pertinent part that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .’’To ascertain the commonly approved usage of a word, it is appropriate to look to the dictionary definition of the term. E.g., State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997).
The trial court observed that it “is aware that the present staff of attorneys assigned to child protection cases is . . . ‘stretched to its limit.’ But [the] court cannot sit back and permit the children of Connecticut to languish longer than necessary in foster care while over-burdened [department] social workers file faulty pleadings in the Superior Court. See Juan F. v. O’Neill, [United States District Court, Docket No. H-89-859 (D. Conn. January 7, 1991)].” Juan F. involved a class action that sought to address systemic deficiencies within the department of children and youth services, now the department of children of families. A comprehensive consent decree was approved in January, 1991, detailing procedures that the department was required to implement. Juan F. by and through Lynch v. Weicker, 37 F.3d 874, 876 (2d Cir. 1994), cert. denied, 515 U.S. 1142, 115 S. Ct. 2579, 132 L. Ed. 2d 829 (1995). Although the trial court in the present case did not assert that the practices it enjoined violated the terms of the federal consent decree, the amici curiae contend that they did. We disagree.
In order to implement the consent decree, the department was required to develop a manual for each section of the consent decree. Id. The manuals were adopted as court orders and incorporated in the consent decree in September, 1992. Id. One of the manuals provides in relevant part: “At least one . . . [assistant attorney general] shall be available to perform all mandated functions in a timely manner for the Regional Offices [of the department] five . . . days each week. The [assistant attorney general’s] activity shall include but not be limited to the following:
“a. Assist workers in the preparation of court documents, and review documents prior to submission to achieve maximum effectiveness in court . . . .” DCYS Regional Resource Group/Community Consultant Manual (September 1, 1992) p. 7.
Aside from the contention of the amici curiae in the present case, we are not aware of any claim in any court in which it has been asserted that the commissioner’s practice of having nonlawyers prepare, sign and file neglect and termination petitions violates the terms of the consent decree. And, although counsel for the amici curiae in the present case also is counsel to the plaintiff class in Juan F., that counsel has identified no such case. Moreover, inasmuch as the federal district court has retained continuing jurisdiction over the consent decree, it is by no means clear that a state
We also note that the trial court, quoting from In re Cassandra B., Superior Court, judicial district of Middlesex, Juvenile Matters, Child Protection Session at Middletown, Docket No. T11-CP96-000141 (November 4, 1997), another termination of parental rights case over which it had presided; see footnote 10 of this opinion; observed that, “prior to 1993, [the department] had, by statute, lawyers assigned to it. . . . It is understandable how [the department] could, at that time, file its own petitions. But, in 1993, by virtue of [Public Acts 1993, No.] 93-21C, the [department’s] lawyers were transferred to the office of the Attorney General, thus placing the Commissioner in the same position as all other department heads, i.e., that of relying on the Attorney General to perform her legal functions.” We do not agree that P.A. 93-216 sheds any light on the question of whether our statutes authorize nonlawyers to file neglect and termination petitions on behalf of tire department.
Public Act 93-216, entitled “An Act Concerning Technical and Minor Changes to DCYS Statutes,” merely transferred, for administrative purposes, attorneys from the department to the office of the attorney general, primarily for the purpose of complying with the provisions of the consent decree. See 36 S. Proc., Pl. 10, 1993 Sess., p. 3424. The technical nature of the legislation belies any claim that it was intended to make any substantive change in the law. Accordingly, we reject the conclusion of the trial court that P.A. 93-216 has any bearing on the question of whether nonlawyer representatives of the commissioner may execute neglect and termination petitions.
See footnotes 5 and 17 of this opinion.
In other circumstances, the judiciary, by contrast, has developed forms that specifically require execution by an attorney. See, e.g., Practice Book Form 504.2 (petition for decree dissolving marriage after legal separation).
We note, and as the commissioner acknowledged at oral argument, that the legislature, partly in response to new federal and state statutory mandates for more expedited filing of termination petitions; Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, § 103, 111 Stat. 2115, 2118-20; Public Acts 1998, No. 98-241, § 6 (a); that are expected to increase dramatically the number of such filings, recently appropriated funds to enable the department to hire approximately eight staff attorneys. See Special Acts 1998, No. 98-6. Although it is anticipated that the attorneys will assist in the review of neglect and termination petitions, the appropriation was not, in any respect, conditioned on the performance of such tasks.