Opinion
September 15, 2005
MEMORANDUM OF DECISION MOTION TO STRIKE
On May 13, 2005, the petitioners, Susan and Stanley L. filed a neglect and uncared-for petition on behalf of Srun R., a Cambodian child. Specifically the petitioners allege that Srun has been abandoned and that he is uncared-for in that he is homeless or his home cannot provide the specialized care which his physical, emotional or mental condition requires. The petition indicates that the mother and father of Srun are unknown. No legal guardian of Srun is identified in the petition. Although not clearly or concisely stated, the relief sought by the petition is an order of the court and requisite findings which would serve as a predicate for a filing with the immigration authorities for a visa status as a Special Immigrant Juvenile (SIJ) that would allow Srun to remain in the United States.
Concurrent with the filing of the neglect petition, the petitioners filed an application for an exparte order of temporary custody. The application alleged that the Sharing Foundation, Inc. brought Srun from Cambodia to the United States in August of 2003 for the purpose of providing Srun with life saving medical treatment. Since September 2003, while Srun's medical treatments and rehabilitation were on going, the petitioners have cared for Srun in their home in Canterbury, Connecticut. The petitioners claim that the Sharing Foundation advised them that it would be returning Srun to Cambodia in late June of 2005. The petitioners allege that Srun will suffer serious emotional injury if he is removed from their home and returned to Cambodia. The petitioners allege that Srun might qualify for SIJ status with the immigration authorities. If granted SIJ status, Srun would be allowed to remain in the United States. The court granted the petitioners temporary custody of Srun, ordered service upon the Sharing Foundation and set up a show cause hearing for June 2, 2005. On June 2, 2005, the respondent, the Sharing Foundation, Inc., appeared by counsel, and the parties agreed that the child would remain with the petitioners until the Sharing Foundation could file motions concerning the jurisdiction of the court and the court could decide those motions.
The court will digress to review the SIJ program because an understanding of that program will be necessary to put the interests of Srun into context. In 1997, Congress passed Public Law No. 105-19, 111 Stat. 2440, 2460 (1997) which, in § 113, amended § 1101(a)(27)(J), so that Special Immigrant Juvenile was redefined, in relevant part, as follows:
(J) an immigrant who is present in the United States —
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State and who has been deemed eligible by that court for long-term foster care due to abuse, neglect, or abandonment;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and (iii) in whose case the Attorney General expressly consents to the dependency order serving as a precondition to the grant of special immigrant juvenile status; except that —
(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the actual or constructive custody of the Attorney General unless the Attorney General specifically consents to such jurisdiction . . .
(Emphasis added to indicate changes.) 8 U.S.C. § 1101(a)(27)(J)(2005).
The agency regulation that applies to U.S.C. § 1101(a)(27)(J) is 8 C.F.R. § 204.11. It was adopted in 1993, before the amendment was enacted and, among other things, defines who is eligible of SIJ status. The regulation provides, in relevant part:
(c) Eligibility. An alien is eligible for classification as a special immigrant under [U.S.C. § 1101(a)(27)(J)] if the alien:
(1) Is under twenty-one of age . . .
(3) Has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependancy, while the alien was in the United States and under the jurisdiction of the court;
(4)Has been deemed eligible by the juvenile court for long-term foster care . . .
(5) Continues to be dependent upon the juvenile court and eligible for long-term foster care . . .
(6) Has been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court in which it has been determined that it would not be in the alien's best interest to be returned to the country of nationality or last habitual residence of the beneficiary or his or her parent or parents . . .
(d) Initial documents which must be submitted in support of the petition . . .
(2) One or more documents which include:
(i) A juvenile court order, issued by a court of competent jurisdiction located in the United States, showing that the court has found the beneficiary to be dependent upon that court; and
(ii) . . . eligible for long-term foster care; and
(iii) Evidence of a determination make in judicial or administrative proceedings by a court or agency recognized by the juvenile court and authorized by law to make such decisions, that it would not be in the beneficiary's best interest to be returned to the country of nationality or last habitual residence of the beneficiary or of his or her parent or parents. 8 C.F.R. § 204.11.
As used in the regulation, the term "eligible for long-term foster care" "means that a determination has been made by the juvenile court that family reunification is no longer a viable option. A child who is eligible for long-term foster care will normally be expected to remain in foster care until reaching the age of majority, unless the child is adopted or placed in a guardianship situation. For the purposes of establishing and maintaining eligibility for classification as a special immigrant juvenile, a child who has been adopted or placed in guardianship situation after having been found dependent upon a juvenile court in the United States will continue to be considered to be eligible for long-term foster care." 8 C.F.R. § 204.11(a).
According to the congressional conference report on the statute, the changes in the law were intended "to address several problems encountered in the implementation of the special immigrant juvenile provision. The language has been modified in order to limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children, by requiring the Attorney General to determine that neither the dependency order nor the administrative or judicial determination of the alien's best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect. The conferees intend that the involvement of the Attorney General is for the purposes of determining special immigrant juvenile status and not for making determinations of dependency status . . ." H.R. Report No. 105-405, at 2981 (1997).
As to the requirement in 8 U.S.C. § 1101(a)(27)(J)(iii) that the Attorney General "expressly consents to the dependency order," according to one court, "[t]he legislative history demonstrates an intent to remove immigration decisions from the exclusive control of juvenile courts and the social agencies affiliated with them." M.B. v. Quarantillo, 301 F.3d 109, 114 (3rd Cir. 2002). The court notes, however, that the statute and the INS draw distinctions "between juveniles in INS custody and those not so classified." Id., 115. One commentator explained that, regarding children who are not in the actual or constructive custody of the federal government, the INS interprets the provision as follows: "Juvenile courts do not need the Attorney General's consent to take jurisdiction to issue dependency orders for . . . juveniles [not in INS custody] . . . INS officials should not become involved in juvenile court proceedings in order to consent to dependency orders. Rather, the Attorney General's consent to the dependency order should be reflected in a grant or denial of the petition for SIJ status." K. Porter, "On the Best Interests of the INS: An Analysis of the 1997 Amendment to the Special Immigrant Juvenile Law," 27 J. Legis. 448, quoting T. Cook, Acting Assistant Commissioner, INS, "Memorandum to Regional Directors" (July 9, 1999). In a legal opinion, the general counsel for the INS explained, albeit, before the 1997 amendment was enacted, "the INS will not become involved in juvenile dependency cases in which the juvenile is not in INS custody, since this is the group (non-detained juvenile aliens) that the special immigrant status was designed to help." INS General Counsel, Legal Opinion No. 95-11, "Foster Care Detention of Unaccompanied Juvenile Aliens," (June 30, 1995). See also Gao v. Jenifer, 185 F.3d 548, 553 (6th Cir. 1999) (because plaintiff was in constructive custody of INS, he is, as a result of the 1997 amendments, "in a limited and closed class of immigrants" for whom "the Attorney General must consent for the juvenile court to have jurisdiction . . ."). Pursuant to the present requirements of 8 U.S.C. 1101(a)(27)(J), "[t]wo preconditions must be satisfied [before a juvenile alien petitions] for SIJ status. First, a juvenile court must determine that the applicant is dependent on the juvenile court and eligible for long-term foster care due to `abuse, neglect or abandonment.' Second, the juvenile court must determine that it would not be in the applicant's best interest to be returned to his or her or the parent's previous country of nationality or last habitual residence. For applicants who are not detained by the INS and are not in removal proceedings, the juvenile court proceedings are generally completed before any contact is made with the INS . . . The 1997 amendment requires that the [Attorney General] specifically consent to the juvenile court's dependency order. If an applicant is not in INS custody, the juvenile court does not need the INS's consent before issuing the order, and INS officers need not be involved in the juvenile court proceedings. Instead the Attorney General's consent is reflected in a grant or denial of the applicant's petition for SIJ status." C. Gordon, S. Mailman S. Yale-Loehr, 3-35 Immigration Law and Procedure (2005), ch. 35, § 35.09[4]. This is consistent with "the premise that state juvenile courts generally have jurisdiction over immigrant juveniles within their territory, whether legally admitted to the United States or not. Section 1101(a)(27)(J), both as it exists now and as it existed before the 1997 amendments, explicitly recognizes — in fact, requires — attention to judgments of state juvenile courts concerning the dependency, custody, and best interests of juvenile immigrants." Gao v. Jenifer, supra, 183 F.3d 554.
With this statutory language, legislative history and case law this court concludes that 8 U.S.C. § 1101(a)(27)(J), does not preempt the jurisdiction of this court to consider the petitioners' petition in that they are seeking a determination that Srun is abandoned, and he is not in the actual or constructive custody of the INS or any other federal agency. See Gao v. Jenifer, supra, 185 F.3d 554.
Indeed, in several cases, state juvenile courts have determined that the federal statute does not prevent them from exercising their jurisdiction over children within their borders who are nonresident foreign nationals, and who are not in the custody of the INS. See In re Juvenile, 148 N.H. 743, 747-48, 813 A.2d 1197 (2002) ("We find nothing in 8 U.S.C. § 1101(A)(27)(J) to bar or preempt jurisdiction in this case."). See also In re Adoption of Peggy, 436 Mass. 690, 699, 767 N.E.2d 29, cert. denied, 537 U.S. 1020, 123 S.Ct 540, 154 L.Ed.2d 428 (2002) ("Federal immigration law specifically recognizes the jurisdiction of State Juvenile Courts over determinations regarding the custody and best interests of children who have been abused or neglected, regardless of their immigration status. See 8 U.S.C. § 1101(a)(27)(J).").
THE MOTION TO STRIKE
On June 9, 2005, the respondent filed a motion to strike the neglect petition and to vacate the prior orders regarding the custody of Srun. Thereafter, on June 21, 2005, the respondent filed an amended motion to strike and a memorandum of law.
In the amended motion to strike, the respondent asserts that although Srun was abandoned in Cambodia by his biological parents in 2001, the petitioners' allegations and supporting documents establish that since that time, Srun has been in the care and under the protection of the Roteang Orphanage, a facility established by the Sharing Foundation in Cambodia, and therefore, he is not neglected or abandoned as those terms are used in connection with General Statutes § 46b-120. In addition, the allegations in the petition and the supporting documents show that while Srun has been in the care of the Roteang Orphanage and the Sharing Foundation, he has had a home and his specialized needs have been and are being met (specifically the respondent has placed Srun in the home of the petitioners), and he therefore is not uncared-for as that term is used in the General Statutes. In addition, the respondents question the court's authority to address the petitioners' motion for order regarding Srun's eligibility for status as a special immigrant juvenile.
The petitioners filed a memorandum in which they oppose the amended motion to strike on both procedural and substantive grounds. Procedurally, the petitioners claim that the amended motion is fatally defective because it constitutes a second motion to strike. The court rejects this argument and finds that the amended motion to strike rectifies defects in the respondent's initial motion to strike, relies on the same grounds as the initial motion and is, therefore, properly before the court as an amended initial motion to strike, and not as a second motion to strike. See Priceline.com, Inc. v. Mayes, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. X08 CV 03 0196820 (March 16, 2005, Adams, J.) ( 39 Conn. L. Rptr. 9, 10); Smith v. Christoforo, Superior Court, judicial district of New Haven, Docket No. CV 99 0425766 (July 25, 2000, Alander, J.) n. 1; and Sceink v. Baker, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0172704 (July 11, 2000, Karazin, J.).
Substantively, the petitioners argue that their neglect petition alleges sufficient facts to show that Srun was abandoned by his biological parents and he was uncared for by them, and that the care of Srun in the home of the petitioners is immaterial. The petitioners argue that the child will be emotionally and psychologically injured if he is returned to Cambodia, and thus they have also pleaded a claim of predictive neglect. Finally the petitioners claim that the respondent's relationship to Srun is not supported by any authority.
The petitioners note that Srun was admitted into the United States under a B-1/B-2 medical visa, and that an application for this type of visa may be completed by "any person having legal custody of" or a legitimate interest in, the alien." Department of State regulation 9 FAM. 41.102 PN 1.1. Indeed, the person's interest in the alien may be humanitarian. Therefore, although the Sharing Foundation completed visa applications for Srun, it is uncertain whether it is serving as his legal guardian.
The petitioners assert that this court has jurisdiction on the following basis; (1) pursuant to General Statutes § 46b-115, in that Srun has been a resident of Connecticut continuously for two years; (2) pursuant to In re Joshua A., 260 Conn. 182, 196-97, 796 A.2d 1141 (2002), in that the filing of the petition for neglect confers jurisdiction on this court to decide the issue of guardianship; (3) pursuant to 8 U.S.C. § 1101(a)(27)(J), in that the statute confers jurisdiction on this court to determine whether Srun is, inter alia, eligible for foster care due to neglect or abandonment.
Standard of Review
Practice Book § 34a-15, which applies to juvenile court proceedings involving neglect, provides in relevant part: "(a) Whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any petition, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike to contested petition or part thereof." In the civil arena, it is well understood that "[t]he purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
As stated by two commentators, in adopting this and the other rules found in chapter 34a of the rules of practice, the court "incorporat[es] many of the familiar tools and requirements of civil pleading and motion practice into the neglect and termination arena . . . The pedigree of these new sections is obvious. Therefore, while there are some subtle differences, the analogous civil rules may well serve as persuasive authority to a court asked to construe a provision of this chapter." W. Horton and K. Knox, 1A Connecticut Practice Series-Juvenile Law, chapter 34a, authors' comments.
In considering a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [plaintiffs have] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[T]he facts alleged in the complaint, though not the legal conclusions it may contain, are deemed to be admitted." Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003). In addition, the court "read[s] the allegations broadly, rather than narrowly." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). Thus, the court must "assume the truth of both the specific factual allegations and any facts fairly provable thereunder." (Internal quotation marks omitted.) Id. Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . [Conversely,] [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
The court now reviews the petition and the documents incorporated by reference therein to determine whether the facts alleged in the petition support the petitioners' claims that Srun is neglected and/or uncared for.
As required by Practice Book § 33a-1(b), the petitioners attached to the petition a summary of the facts substantiating the allegations in their petition, in the form of a memorandum in support of the petition, and incorporated the memorandum and the facts set out in their motion for first order of notice into the petition by reference thereto.
They also attached numerous documents to the memorandum and incorporated them by referrence into the petition. A civil complaint, which is analogous to a petition for neglect, includes all documents that are properly incorporated therein. See Hossan v. Hudiakoff, 178 Conn. 381, 382, 423 A.2d 108 (1979); and Practice Book § 10-29. If a document is properly incorporated into a complaint, the trial court must consider the document as part of the complaint in ruling on a motion to strike. Redmond v. Matthies, 149 Conn. 423, 425-26, 180 A.2d 639 (1962).
The court finds the following facts are well pleaded for the purposes of this motion.
Srun was born on July 10, 2000, in Kandal, Cambodia.
In 2001, Srun, because of his medical disabilities, was abandoned by his biological parents at a hospital in Cambodia. The hospital was unable to successfully treat Srun's medical condition, and eventually discharged him to the Roteang Orphanage.
The Roteang Orphanage, which is located in Kean Svey, Cambodia, is run by the Sharing Foundation. Dr. Nancy W. Hendrie is the head of the Sharing Foundation.
On July 30, 2001, Srun was issued Cambodian passport number NO159911 by the Kingdom of Cambodia. The passport contains the following information: "In case of emergencies contact Ly Sreyvina, address C.O.S. Roteang Orphanage." On August 14, 2003, the United States issued a class B-2 visa to Srun, which referred to his Cambodian passport. Srun entered this country on August 15, 2003. He traveled from Cambodia to Boston, Massachusetts for the purpose of receiving medical care.
On or about September 1, 2003, Srun was discharged from the hospital to recuperate. He was placed in the home of the petitioners. Dr. Hendrie executed a notarized letter addressed "To whom it may concern." The letter appointed "Susan and Stanley L. . . . to act in my place as legal guardians for the benefit of . . . Srun, an abandoned child from the Roteang Orphanage, Kean Svey, Cambodia." The letter continued, "[t]his Powert (sic) of Attorney includes authority to make medical decisions in an emergency, to seek medical care, to admit or cause to have discharged from any hospital, or to make any other decisions pertinent to the welfare of this child. This child is in the United States for medical treatment, and is entrusted to their care as foster parents during his stay here. He is here under the auspices of The Sharing Foundation . . ." Dr. Hendrie signed the letter as "President, The Sharing Foundation, Primary Legal Guardian of . . . Srun . . ."
On or about June 28, 2004, Dr. Hendrie, on behalf of the Sharing Foundation, sought an extension of Srun's visa. In the visa application, Dr. Hendrie listed Srun's address in Cambodia as the Roteang Orphanage in Kandal, Cambodia. In response to a question in the application regarding how Srun was supporting himself, Dr. Hendrie explained, "When not in the hospital, all Srun's bills are paid by The Sharing Foundation (see www.Sharingfoundation.org.), an organization dedicated to the care of Cambodian children, most of whom never leave Cambodia. All expenses are covered, and are pledged indefinitely." In the application package, Dr. Hendrie outlined Srun's medical condition and stated: "[W]e need to be able to repeatedly study Srun's progress by means of sophisticated barium swallow studies at Mass General . . . We feel Srun is not yet medically ready to return to orphanage care in rural Cambodia . . ."
The Immigration and Naturalization Service approved the application and extended Srun's visa to February 14, 2005.
On December 29, 2004, the Sharing Foundation again filed an application to extend Srun's visa. In the letter dated December 29, 2004, that Dr. Hendrie submitted in support of the application, she described the petitioners as "[t]he foster family which is providing day to day care for Srun as I go back and forth to Cambodia . . . [and] would very much like to adopt him, however adoption is not open in Cambodia at present." She noted that "Srun now speaks and understands only English, he is thoroughly Americanized, riding a tricycle, eating ice cream, going camping, and very bonded to his foster family. What he has to return to in Cambodia is Orphanage living, with a large group of children and nannies who speak only Cambodian, and obviously do not live as an American family does. At my request, a Pediatric psychotherapist, Judith Hanselman, has evaluated for the Foundation what the impact might be on this little boy were he forced to return to the Orphanage where he came so close to death."
The pediatric psychotherapist stated, "The original anxiety [Srun] has had since infancy, reinforced by the traumatic hospitalizations, has left him as a child who is vulnerable to loss and disorganization . . . It is imperative that Srun be able to continue the emotional growth that is just now possible since his medical problems have begun to recede. To disrupt him now would cause him extreme distress and put him at risk of a psychological crisis."
The Immigration and Naturalization Service approved the application and Srun's visa is presently valid until July 15, 2006.
In the spring of 2005, the respondent advised the petitioners that it would be removing Srun from their home and returning him to the Cambodian orphanage.
Srun is now five years old and has been residing with the petitioners for two years. He resides in Canterbury, Connecticut with the petitioners and the three biological or adopted children of the petitioners.
In summary, for the purposes of this motion, the respondent must admit that Srun was abandoned by his biological parents, that after he received medical treatments, the respondent placed Srun in the petitioners' home and delegated to them the responsibility of looking after Srun, that Srun has lived with the petitioners and their family for more than two years, that Srun is emotionally vulnerable, that it is likely that Srun will be emotionally injured if he is removed from the petitioners' home and returned to Cambodia in an orphanage setting, that the respondent is seeking to remove Srun from the petitioners' home and to return him to Cambodia and that Srun may be eligible for SIJS status that would allow him to remain in the United States.
Thus, the principal legal issue of contention between the parties is whether a petition for neglect that is premised on assertions that a child has been abandoned or is uncared for must be based on the child's relationship with his present guardians, or whether it can be premised on his past relationship with his biological parents and/or his future relationship with the persons or entity that will be his guardian if the petition is denied. The respondents take the former position, and the petitioners take the latter.
With regard to the allegations of neglect, General Statutes § 46b-129(a) provides in relevant part: "[Certain parties, including] a foster parent of a child, having information that a child . . . is neglected, uncared-for or dependent, may file with the Superior Court . . . a verified petition plainly stating such facts as bring the child . . . within the jurisdiction of the court as neglected, uncared-for or dependent, within the meaning of section 46b-120 . . . and praying for appropriate action by the court in conformity with the provisions of this chapter." General Statutes § 46b-120 states in relevant part: "The terms used in this chapter shall, in its interpretation and in the interpretation of other statutes, be defined as follows . . . (9) a child . . . may be found `neglected' who (A) has been abandoned, or (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child . . . or (D) has been abused; (10) a child may be found `uncared for' who is homeless or whose home cannot provide the specialized care that the physical, emotional or mental condition of the child requires . . ." Neither the statute nor the appellate court cases addressing petitions for neglect address directly whether the alleged neglect must arise from the current caregivers or from the biological parents or future care givers such as the Cambodian Orphanage. The petition alleges that a child who has resided in this state for more than two years has been abandoned by his biological parents, and that the claimed guardian of the child is seeking to return the child to a Cambodian orphanage, which action, in the opinion of the pediatric psychologist that it hired, would cause the child extreme emotional distress and place the child at risk of a psychological crisis. Thus, the court finds that allegations in the petition are legally sufficient to state a claim for neglect.
With regard to the allegations of abandonment, the statute and the case law focus on the conduct of the parents and does not determine the issue because those authorities do not address the issue of whether the court's inquiry is limited to a particular period of time or to the conduct of the child's parents, or should be focused on the child's relationship to his present guardians. In addition, the question of whether the respondent is Sam's legal guardian is not a matter that can be resolved in the context of a motion to strike. Finally, an appellate court in at least one other jurisdiction has indicated that a court with jurisdiction over juvenile matters can consider a petition for neglect that was filed on behalf of a nonresident juvenile even though the neglectful conduct occurred before the juvenile entered the United States. Specifically, in In re Juvenile, 148 N.H 743, 746, 813 A.2D 1197 (2002), the court determined that the state statute pertaining to neglect "confers jurisdiction to the district court over any case involving a child found within the State who is alleged to have been abused or neglected, no matter where the abuse or neglect is alleged to have occurred." Id. The statute the court referred to, New Hampshire Rev. Stat. Ann. 169-C:4, I (2002) provided that "`[t]he [district] court shall have exclusive original jurisdiction over all proceedings alleging the abuse or neglect of a child.'" In re Juvenile, supra, 148 N.H 746. It is comparable to General Statutes § 46b-121(a), which provides in relevant part: "Juvenile matters in the civil session include all proceedings concerning uncared-for, neglected or dependent children . . . within this state . . ."
In the deciding of petitions for termination of parental rights based on abandonment, the context in which the issue of abandonment is most frequently addressed, the Appellate Court has explained that "[a]bandonment focuses on the parent's conduct . . . A lack of interest in the child is not the sole criterion in determining abandonment . . . General Statutes [§ 17a-112(j)(3)(A)] defines abandonment as the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare . . .
"Section 17a-112[(j)(3)(A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern. The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance." (Internal quotation marks omitted.) In re Jermaine S., 86 Conn.App. 819, 839-40, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).
The arguments advanced by the parties go well beyond the narrow grounds that would be addressed by a motion to strike. Given the unusual posture of this case, with questions about the status of the biological parents in Cambodia, the lack of clarity about the relationships between Srun and the respondent and the relationship between the respondent and the petitioners, as well as questions about the standing of the petitioners to file this petition (see Theresa B. v. Commissioner of Children and Families, 68 Conn.App. 223, 789 A.2d 1114 (2002), it may well be that the court will sua sponte question its subject matter jurisdiction or the standing of the parties as the facts further develop.
For the foregoing reasons, the court denies the respondent's motion to strike.
The Court
Cosgrove, J.