Opinion
No. H14-CP07-009032-A
January 4, 2008
MEMORANDUM OF DECISION RE RESPONDENT'S MOTION FOR VISITATION
STATEMENT OF CASE
On April 12, 2007, the Department of Children Families ("DCF") filed a neglect petition accompanied by an ex parte motion for an order of temporary custody ("OTC") on behalf of the minor child, Christopher M. The motion was denied on this date. Shortly hereafter, on April 24, 2007, DCF filed another ex parte motion for an order of temporary custody which was granted on that date. On May 4, 2007, the parties agreed to sustain the OTC, which continued to be in effect until August 27, 2007, at which time the OTC was vacated and the child was returned to his mother's care. The neglect petition is currently pending, and is scheduled for trial in February 2008.
The present matter before the court involves the visitation rights of the respondent father. The following procedural history is helpful. On June 4, 2007, respondent's mother and father entered an agreement with the Family Court; this agreement was subsequently approved and ordered by the court, Pinkus, J. Pursuant to this agreement, previous orders of visitation between the father and child were suspended and the court stated that the parties "will enjoy such visitation as DCF deems appropriate or Juvenile Court orders." The respondent father subsequently filed a motion for visitation with the Superior Court for Juvenile Matters in New Britain, and the motion was granted on June 22, 2007. Pursuant to the court's order, respondent father was granted supervised visits once a week for one hour. The respondent however, returned to court on July 12, 2007, to request that DCF be held in contempt for failure to follow the court order regarding visitation. The court so ordered and sanctions were levied. The present motion for visitation was filed by the respondent father on October 17, 2007. DCF now objects to the current motion and contends that this court should not grant the respondent's motion on the ground that he has failed to exhaust his administrative remedies pursuant to General Statutes § CT Page 447 17a-15.
DISCUSSION
During the course of oral argument in support of his motion, respondent father raised the issue of standing. Thus, as a preliminary matter, the court must first address the respondent's argument that DCF does not have standing to contest the present motion because the child is not in the custody of DCF, having been returned to the mother's care in August of 2007. "Standing is a legal right to invoke court jurisdiction based on an individual or representative capacity, a real interest in the court proceedings or a legal or equitable interest. Standing is a practical concept to prevent vexatious suits and assure that each right is represented. DCF must make a colorable claim of direct injury it has suffered or is likely to suffer in an individual or representative capacity to present the necessary assurance of specific adverseness and advocacy. That claim need not be based on a specific statute." In re Jacqueline S., Superior Court, juvenile matters at Litchfield (December 12, 2001, Goldstein, J.T.R.) (31 Conn. L. Rptr. 92, 92-93) (finding that DCF has standing to order genetic testing because it has interest in resolving paternity in a neglect case).
In the present case, this court notes that in accordance with the order of the court, Pinkus, J., the parties were to "enjoy such visitation as DCF deems appropriate or Juvenile Court orders." This order can be interpreted as extending standing to DCF to contest visitation in the present matter. Furthermore, although the child is not currently in DCF's custody, DCF is the agency appointed to address the needs of neglected and uncared for children. See General Statutes § 17a-3. DCF's involvement in the present matter is in its representative capacity, and it retains a real interest in the legal matters that remain before the court because the neglect petition is still pending.
General Statutes § 17a-3(a), entitled "Powers and duties of department — Master plan," provides in pertinent part: "The department shall plan, create, develop, operate or arrange for, administer and evaluate a comprehensive and integrated state-wide program of services, including preventive services, for children and youths whose behavior does not conform to the law or to acceptable community standards, or who are mentally ill, including deaf and hearing impaired children and youths who are mentally ill, emotionally disturbed, substance abusers, delinquent, abused, neglected or uncared for, including all children and youths who are or may be committed to it by any court, and all children and youths voluntarily admitted to, or remaining voluntarily under the supervision of, the commissioner for services of any kind." (Emphasis added.)
Turning to the merits, DCF argues that it has concurrent, but primary jurisdiction with the Juvenile Court in this matter. DCF maintains that this court should deny the respondent's motion because the respondent has failed to follow the proper administrative procedures set forth in § 17a-15. Accordingly, it contends that this court should defer deciding this motion at this time, and allow DCF to address the issue at the administrative level.
This court has jurisdiction over the present matter pursuant to General Statutes § 46b-121; however, this jurisdiction is concurrent with DCF's jurisdiction over such matters. See General Statutes § 17a-10a(a). Where the court and an administrative agency have concurrent jurisdiction, the doctrine of primary jurisdiction applies. "As a general rule, this court requires parties in neglect proceedings to pursue appropriate remedies though administrative proceedings prior to invoking judicial relief. The court customarily allows DCF to initially decide issues though an administrative hearing on the basis of the rationale underlying the doctrine of primary jurisdiction. The doctrine is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions." (Internal quotation marks omitted.) In re Leighton V., Superior Court, juvenile matters at New Haven (October 9, 1998, Alander, J.) (23 Conn. L. Rptr. 128, 129). "Under the doctrine of primary jurisdiction, the requirement of exhaustion of remedies prior to seeking court relief does not apply." In re Marion D., Superior Court, juvenile matters at Middletown, Docket No. H12-CP91-000828 (December 14, 1999, Shapiro, J.). Therefore, a more suitable characterization of the issue before the court is not whether the court should decline ruling on this matter because of the respondent's failure to first seek administrative relief under § 17a-15, but rather whether DCF, in this instance, has primary jurisdiction.
General Statutes § 46b-121(a) provides in relevant part: "Juvenile matters in the civil session include all proceedings concerning uncared-for, neglected or dependent children and youths within this state . . ." Subsection (b) states: "In juvenile matters, the Superior Court shall have authority to make and enforce such orders directed to parents . . ." General Statutes § 46b-121(b).
General Statutes § 17a-10a(a) provides that: "The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such child's parents and siblings unless otherwise ordered by the court." General Statutes § 17a-10a(a).
Even if the court held that the exhaustion of administrative remedies is applicable in the present case, an argument exists that an exception to the doctrine would apply. "It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." Beadles v. Dept. Children Families, Superior Court, judicial district of Hartford, Docket No. CV 960564494 (August 20, 1998, Stengel, J.). "There are some exceptions to the exhaustion doctrine, although we have recognized such exceptions only infrequently and only for narrowly defined purposes." One such exception arises when "recourse to the administrative remedy would be futile or inadequate." Id. "It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." Id. The procedural history of this case could indicate that this exception would apply. In the present case, the respondent has previously sought visitation by filing a motion with the Juvenile court. This motion was granted on June 22, 2007, but the respondent had to return to court on July 12, 2007, to request that DCF be held in contempt for failure to follow the court order regarding visitation. Now, after repeated filings and adjudication by the Superior Court, DCF now asserts that the respondent has failed to exhaust his administrative remedies. The court has asserted jurisdiction over the exact issue currently before this court, it is unreasonable to now require the respondent to go backwards in the judicial process. Arguably, this would be a futile endeavor, particularly considering the fact that an order of contempt was required to enforce the previous court-ordered visitation.
The court, in the case of In re Leighton V., Superior Court, juvenile matters at New Haven (October 9, 1998, Alander, J.) (23 Conn. L. Rptr. 128), addressed the argument of whether a request for a court order should be dismissed because the respondent failed to first seek relief from the administrative agency. The court provided a thorough analysis of primary jurisdiction, and the interplay that exists between the administrative agency and the court. "Although the state asserts that the doctrine of exhaustion of administrative remedies is implicated here, the question is more appropriately one of primary jurisdiction. Primary jurisdiction is conceptually analogous to exhaustion of administrative remedies . . . Both are prudential doctrines created by the courts to allocate between courts and agencies the initial responsibility for resolving issues and disputes in a manner that recognizes the differing responsibilities and comparative advantage of agencies and courts . . . The doctrine of exhaustion of administrative remedies applies to situations in which initial jurisdiction over the claim is exclusively with an administrative agency. Mazzola v. Southern New England Telephone Co., 169 Conn. 344, [349, 363 A.2d 170] (1975). The precept of primary jurisdiction pertains to matters over which courts and administrative agencies have concurrent jurisdiction. In that courts and administrative agencies often have concurrent jurisdiction, the common law doctrine of primary jurisdiction is designed to guide a court in determining whether and when it should refrain or postpone the exercise of its own jurisdiction so that an agency may first answer some questions presented." (Citations omitted; internal quotation marks omitted.) In re Leighton V., Superior Court, juvenile matters at New Haven (October 9, 1998, Alander, J.) (23 Conn. L. Rptr. 128, 128); see also Second Injury Fund v. Lupachino, 45 Conn.App. 324, 342, 695 A.2d 1072 (1997).
In accordance with the primary jurisdiction analysis set forth in the case of In re Leighton, the court is not required to stay its hand in the present matter, and can opt to proceed based on the procedural history of this case. The question is not whether the respondent must first go to the administrative body for resolution of his request, but if the court is willing to proceed absent administrative guidance.
Moreover, this court is not persuaded by DCF's argument that visitation rights fall within the scope of issues to be raised in an administrative proceeding in accordance with § 17a-15. DCF cites to the case of In re Marion D., Superior Court, juvenile matters at Middletown, Docket No. H12 CP91 000828 (December 14, 1999, Shapiro, J.), which found visitation rights to be an issue that falls within the ambit of 17a-15. A review of the statutory language, however, indicates that it is not clear and unambiguous that visitation rights fall within the scope of 17a-15. Pursuant to General Statutes § 17a-15(a), "the commissioner shall prepare and maintain a written plan for care, treatment and permanent placement of every child and youth under the commissioner's supervision, which shall include but not be limited to a diagnosis of the problems of each child or youth, the proposed plan of treatment and temporary placement and a goal for permanent placement of the child or youth, which may include reunification with the parent, long-term foster case, independent living, transfer of guardianship or adoption . . ." Subsection (c) specifically provides that a parent who is aggrieved by any provision of the treatment plan set forth in subsection (a), or who is aggrieved by a refusal of any other service to which the parent is entitled, shall be provided a hearing following a written request. The decision of this hearing can then be appealed to the Superior Court for juvenile matters. Under a plain reading of the statutory language, subsection (a) provides a nonexclusive description of the issues that can be raised in the administrative proceeding provided in subsection (c); however, although the scope of the statute is broad, it is not clear and unambiguous that visitation rights necessarily fall within the scope of § 17a-15. Furthermore, looking to the supporting regulations does not cast further illumination on this issue. Section 17a-15-1 of the Regulations of Connecticut State Agencies provide the following definition of a treatment plan to be prepared under § 17a-15(a): "`Treatment plan' shall be defined as the department of children and families' written document . . ., setting forth the plan for care and treatment on behalf of each child, and shall consist of an assessment, diagnosis, and plan of action." Regs., Conn. State Agencies § 17a-15-1. The regulation then defines "assessment" as the "process which shall include but not be limited to a review of individual, developmental, family, social, educational, financial, medical, and legal status considerations." Regs., Conn. State Agencies § 17a-15-1(a). "Plan of Action" is defined as "a written statement addressing goals, objectives, and activities to be undertaken which shall include but not be limited to the role of the department in arranging for, providing, or purchasing services; and consideration of appropriate living arrangement, any needed therapy, educational plans, and medical treatment." Regs., Conn. State Agencies § 17a-15-1(c). None of these definitions provide clear indication whether visitation rights were intended to fall within the ambit of § 17a-15.
Specifically on the issue of visitation rights, the court refers to General Statutes § 17a-10a(a), which provides: "(a) The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such child's parents and siblings, unless otherwise ordered by the court." (Emphasis added.) It would appear that the statutory language presumes that the court would have jurisdiction to address the issue of visitation. Although § 17a-10a is not implicated in the current motion before the court, it does lend support to this court's conclusion that it is unclear whether visitation rights were intended to be raised first through the administrative body.
The Superior Court has not conclusively decided this issue. Several Superior Court cases deal with the appeal of an administrative decision that has affected visitation rights of a parent; however, these cases do not indicate that visitation rights must always be raised in an administrative proceeding first. See In re Sheily C., Superior Court, juvenile matters at Hartford (January 4, 1999, Dyer, J.) (on appeal, the Superior Court upheld administrative decision to deny father visitation). Furthermore, in the case of In re William J., Superior Court, judicial district of New Haven, Docket No. CV 940367995 (July 27, 1995, Maloney, J.), the court addressed the termination of the respondent father's parental rights. The respondent argued, inter alia, that DCYS reduced his visitation rights which in turn prevented him from maintaining a meaningful relationship with his sons. Although not directly on point, the court appeared to indicate that the respondent father had alternative methods of relief to contest the actions of DCYS — by way of an administrative proceeding under § 17a-15(c) and by motion to the Superior Court. "He did [not] seek enhanced visitation or any other services by motion to this court or by administrative proceedings pursuant to . . . § 17a-15(c)." Id.
This court would further conclude that § 17a-15 is not an exclusive remedy with respect to visitation. In In re Elena H., Superior Court, juvenile matters at Waterbury, (February 7, 2001, Dewey J.), DCF filed a petition to terminate parental rights. The respondent alleged that she had been denied visitation with her children and sought a court order compelling regular visits. DCF argued that the Superior Court had limited jurisdiction only, and as a result of the respondent's failure to exhaust her administrative remedies, DCF maintained that her request for court-ordered visitation should be denied. The court stated: "The fact that there may be parallel avenues of relief does not preclude Respondent Mother's reliance upon the jurisdiction of this court. It is generally accepted that when law provides an adequate administrative remedy, it should be exhausted . . . In the present case, however, the [d]epartment seeks this court's jurisdiction, and concomitantly the full force and effect of this court's orders, in its efforts to terminate . . . parental rights." (Emphasis added.) Id. The court ultimately concluded that the department could not invoke the jurisdiction of the court and then require the respondent to challenge a key issue in a separate procedure. Id., n. 3. While the present case does not involve a petition to terminate parental rights, and DCF is not invoking this court's jurisdiction in its own right, in this instance, this court finds it significant that it has already exercised jurisdiction over the issue of visitation in the present case, and while DCF filed objections to the motion, it did not assert primary jurisdiction until now.
The court also finds it significant that in situations involving concurrent jurisdiction, where the issue of exhaustion of administrative remedies is raised, courts have drawn a distinction based on the order of the proceeding. "[B]ecause the plaintiff . . . invoked only the trial court's concurrent jurisdiction over the subject matter of her complaint, she was not required to exhaust the administrative remedies initially available to her. In contrast, the plaintiff in the present action elected initially to proceed before the board . . . [and] did not invoke the court's concurrent jurisdiction . . . Thus, the plaintiff was constrained to exhaust the remedies available in the manner prescribed . . . She could not, subsequent to having initiated the administrative proceedings, bring an independent action to test the very issue which the statutory appeal was designed to test." Cianci v. Connecticut Counsel, AFSCME, 8 Conn.App. 197, 201, 512 A.2d 232 (1986); see also Connecticut Employees Union Independent, Inc., Local 511, SEIU, AFL-CIO v. Connecticut, Superior Court, judicial district of Middlesex, Docket No. CV 01 0096797 (June 28, 2002, Shapiro, J.) (32 Conn. L. Rptr. 431, 433).
At the hearing on this matter, the Assistant Attorney General representing DCF conceded that this court had jurisdiction over the initial order of visitation. He then argued, however, that modifications of the initial order fall under § 17a-15 and must first be brought to the agency. If the court were to adopt the rationale of this argument, an unreasonable result would be born — one that required a party to seek resolution of visitation with the court, and then go backwards in the judicial process to the administrative agency to modify.
In conclusion, this court overrules DCF's objection to respondent father's motion for visitation. This court has jurisdiction to hear the respondent's motion, and the court, therefore, need not defer primary jurisdiction to the administrative agency. Furthermore, this court is not persuaded by DCF's argument that it has jurisdiction when the court, Kahn, J., first exercised jurisdiction on June 22, 2007, the date the court initially heard, and granted, the respondent's motion for visitation rights. DCF had the opportunity at that time to raise the defense of failure to exhaust administrative remedies, and failed to do so. Furthermore, the statute providing the alleged administrative relief does not clearly and unambiguously state that visitation rights should first be brought in an administrative proceeding. Accordingly, where such ambiguity exists, it is unfair to deny respondent father access to this court.
Having concluded that this matter is properly before the court, the court will now address the merits of the respondent father's motion for an increase in visitation. Per order of the court (Kahn, J.), the respondent father presently visits with his son once a week for an hour. The visit is supervised at Klingberg Family Center. Respondent father seeks to increase his supervised visit by one hour. The court has reviewed all of the evidence submitted, both documentary and testimonial, and finds by a preponderance of the evidence that the respondent father has had nineteen supervised visits with his son at Klingberg between August 2007 and December 2007, and according to Ms. Rodriguez, the Outreach Parent Counselor who supervises the visits, father has never been late for a visit, has not missed a visit and has been appropriate with Christopher at all of the visits. Ms. Rodriguez observed nothing during respondent father's visits that would make her fearful of increasing the supervised visits to two hours. Review of Ms. Rodriguez' observation reports introduced by the State demonstrates that respondent father interacts well with Christopher during the visits and engages Christopher appropriately by providing activities, such as card games and board games. The visitation reports (Pet. Exs. 1, 2 and 3) and the testimony of Ms. Rodriguez clearly demonstrate that an appropriate bond exists between Christopher and his father.
Pursuant to General Statutes § 46b-129a, the guardian ad litem ("GAL") shall speak on behalf of the best interest of the child and shall be knowledgeable about the needs and protection of children. General Statutes § 46b-129a; See also, Christina M., 280 Conn. 474, 908 A.2d 1073 (2006). Attorney Matthew Jalowiec was appointed by the court to serve as Christopher's GAL. He was appointed presumably based upon his knowledge and experience in juvenile cases. He testified that he reviewed documents he received in this case and he spoke with Christopher regarding visitation with his father. Based upon his knowledge of the case and his discussions with Christopher, it is Attorney Jalowiec's opinion that increasing respondent father's supervised visits to two hours is in Christopher's best interest. This court gives great weight to the opinion of the GAL on this issue in light of his statutory role as set forth in § 46b-129a and his judicially defined role in In re Christina M., supra. DCF failed to adequately rebut Attorney Jalowiec's opinion through its witnesses. There was testimony about sexualized and aggressive behaviors exhibited by Christopher, however, DCF failed to prove that these behaviors were a direct result of Christopher's visits with his father. Interestingly, although Christopher is engaged in therapy and was examined by Dr. Humphrey, the court appointed evaluator, DCF did not offer any expert testimony regarding whether an increase in father's visit by one hour would be detrimental to Christopher or whether Christopher's behaviors were directly linked to visits with his father as claimed by DCF.
Accordingly, the court therefore finds by a preponderance of the evidence that it is in Christopher's best interest to increase father's supervised visits from one (1) hour per week to two (2) hours per week. Therefore, respondent father's motion for increased supervised visits is granted.
Any future request by respondent father for an increase in visits beyond two (2) hours will not be heard by this court unless he first undergoes a sexual offender risk assessment evaluation. Such assessment, whether or not court-ordered shall be made available to the Department of Children and Families, when and if a future request for an increase in visitation is made by respondent father. If such assessment is court-ordered, the procedures for its completion shall comply with Practice Book § 34a-21. The court's bench ruling issued on December 21, 2007, and its December 27, 2007 ruling on DCF's Motion for Clarification are herein incorporated.
It is so ordered.