Opinion
UWYCV164036715S
09-22-2016
Linda Kulmann v. Morna Murray, Commissioner Department of Developmental Services et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT COMMISSIONER'S MOTION TO DISMISS
Mark H. Taylor, Judge.
I
BACKGROUND AND FACTS
The applicant in this case, Linda Kulmann, seeks a writ of habeas corpus pursuant to General Statute § 52-466(a), for the release of her 21-year-old son, hereinafter referred to as " N., " from the custody of the Department of Developmental Services. She represents herself in this case as the " next friend" of her son N. The respondent, Morna Murray, Commissioner of the Department of Developmental Disabilities (Department), moves to dismiss the application pursuant to Practice Book § 23-29(1) and (2), asserting that this court lacks subject matter jurisdiction and that the applicant fails to state a claim upon which relief can be granted.
This case arises from an allegation of abuse and neglect of N. by the applicant. After losing substantial weight while in the custody and care of the applicant, and pursuant to General Statutes § 17a-274(k), the Department issued an Emergency Order of Custody on February 4, 2015. This order was signed and sworn to by then Commissioner, Terrance W. Ward, alleging N. was in need of immediate care and treatment. Sealed Exhibit 1. This order was followed by a Waterbury Probate Court Decree, dated March 24, 2015, Brunnock, J., wherein the court made findings based upon the testimony and evidence presented, that the applicant was unable " at this time " to provide the best care for N. due to his medical conditions. Based upon these findings and pursuant to General Statutes § 17a-274, N. was placed in the custody of the Department. Sealed Exhibit 2. Subsequently, the Waterbury Probate Court issued an additional Decree, dated September 15, 2015, Brunnock, J., appointing a plenary guardian for N. pursuant to General Statutes § 45a-669 et seq. Importantly, the applicant participated in both of these probate court proceedings and it is noted in the proceeding for a plenary guardian, that the applicant " emphatically stated that as the mother of [N.], she, not a court appointed individual, should be [N.]'s guardian." Sealed Exhibit 3, p. 2. Not doubting the love and concern of the applicant for her son, N., her plea was rejected by the Probate Court due to her refusal of important services for the benefit of N. and her own debilitating personal issues, inter alia .
The applicant has not appealed from these decrees of the Probate Court, in part, according to her own statements, due to her diminished emotional state following the loss of her son. Yet, the applicant continues to disagree with the findings and conclusions of the Probate Court, as well as the actions of the Department. She also points to inconsistencies in Department documents, originally suggesting that they represent evidence of fraud, but has ultimately concluded that they are the product of incompetence.
The primary evidence supporting the applicant's conclusion of fraud or incompetence is an " Application/Placement of Person With Disability" form, attached to her brief in opposition to the motion to dismiss. This form was filed with the Probate Court by the Department's Regional Director, Fritz Gorst, on February 5, 2015. This form appears to be a timely pleading, filed with the Probate Court the day after the issuance of the Emergency Order of Custody, signed by the Commissioner on February 4, 2015. The court concludes that this is not evidence of fraud but is, instead, an appropriate court filing, following the Commissioner's determination that the Emergency Order regarding N. ought to be issued.
The court has reviewed the documents submitted by both parties, including an incident report involving the applicant's missing person report the day the Department took custody of N. The applicant also stated at the hearing that she is on probation for trespassing at N.'s facility in an attempt to provide belongings to him at his new home. Although these incidents and official actions of the Department and Probate Court reflect a very sad and troubling story, especially for N. and the Applicant, the court concludes there is no evidence of fraud and that statutory and constitutionally appropriate procedures were followed to protect the applicant's rights of notice and to be heard.
II
APPLICABLE LAW
Subsection (a) of General Statute § 52-466 provides, in relevant part, that " [a]n application for a writ of habeas corpus . . . shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person's liberty." (Emphasis added.) Generally, the Department asserts that N. is not " illegally confined, " as contemplated by our habeas corpus statute because he has been lawfully committed to its custody through the authority of the Probate Court and that a collateral attack in the Superior Court on this lawful process is impermissible, absent a timely appeal. The court agrees.
The proper means to challenge the Probate Court's Decrees was for the plaintiff to file an appeal. General Statutes § 45a-186(a) provides that " [A]ny person aggrieved by any order, denial or decrees of a Probate Court in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court." Moreover, General Statutes § 45a-24 provides in relevant part that: " All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud."
In reading these statutory provisions together, the Appellate Court has recently concluded that they " establish that a Probate Court decree is conclusive . . . until or unless the decree is disaffirmed on appeal . . . The decree of a court of probate, in a matter within its jurisdiction . . . is as conclusive upon the parties, as the judgment or decree of any other court; and the superior court as a court of equity, has no more power to correct, alter, or vary it, than it has to alter or vary the judgments of any other court in the state." These enactments reveal the legislature's intent not to provide a trial court with subject matter jurisdiction over a probate court's order . . . absent an appeal to the trial court taken from that order." (Emphasis added; citation omitted; internal quotation marks omitted.) Ferraiolo v. Ferraiolo, 157 Conn.App. 350, 356, 116 A.3d 366, 370 (2015), citing Silverstein v. Laschever, 113 Conn.App. 404, 414, 970 A.2d 123 (2009).
III
CONCLUSION
Based upon the facts and applicable law, the court concludes that it is without subject matter jurisdiction to act on the application for habeas corpus and it is, therefore, dismissed. The applicant's remedy, if any, may be found in the Probate Court, especially in light of its finding that the applicant was unable to appropriately care for her son at the time the decrees were issued.
In light of the dismissal, the court need not reach the additional issue raised by the Department that the petition fails to state a claim upon which relief can be granted.
The court notes that the Department's attorney has filed with the court the statutory provisions available to the applicant to pursue a review of N.'s status and his plenary guardian before the Probate Court. See General Statutes § § 17a-276, 45a-671, 45a-676, 45a-678 and 45a-681.