In re Darlene C.
Lead Opinion
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
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 terminatiоn 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
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
There is nothing in the unambiguous language of either
We also disagree with the trial court that
Furthermore, as we previously have indicated,
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
The portion of the judgment enjoining the cоmmissioner 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.
Notes
The legislature recently amended
Darlene C. has been in the custody of the commissioner and has remained in foster care since immediately after her birth in January, 1994.
The judgmеnt 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.
“(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,
The commissioner subsequently filed a corrected termination petition with respect to Darlene C.
“(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.”
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) (improрer 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 drаft and file petitions on behalf of the commissioner, “it is the custom and practice
The permanent injunction constituted a final judgment for purposes of appeal. See, e.g., Stamford v. Kovac,
See footnote 1 of this opinion.
The text of
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.) Moreovеr, 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
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. Othеr 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 thаt of litigants and their counsel. The trial court’s conduct did not comport with these principles.” Sassone v. Lepare,
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.”
See footnote 1 of this opinion.
See footnote 14 of this opinion.
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,
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 fоotnote 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 rеject 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 apprоpriation was not, in any respect, conditioned on the performance of such tasks.
Concurrence Opinion
concurring. I fully agree with and join the majority opinion. I write separately only to address briefly the underlying question of whether the preparation and filing of petitions by social workers employed by and acting on behalf of the department of children and families (department) constitutes the practice of law. In my Anew, it does not.
In deciding whether certain conduct constitutes the practice of law, “the decisive question is whether the acts performed [are] such as are commonly understood to be the practice of law.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Patton,
Of course, lawyers routinely prepare and file petitions in court — in both routine and, as in this type of case, very significant matters. That does not mean, however, that whenever someone files such a petition on someone else’s behalf
First, as the commissioner of the department informs us, “[b]etween September 1, 1994, [and] August 31, 1995, the commissioner or her designees executed and filed 5337 petitions for neglect, revocation or extension of commitments, and for termination of parental rights . . . .Although assistant attorneys general often review
Second, our history, tradition and experience indicate that similar conduct by public officials acting pursuant to their statutory responsibilities does not constitute the practice of law. Probation officers have long and often prepared and filed petitions for violation of probation in criminal matters; see
In the present case, for example, the social worker prepared and filed the petition on behalf of the commissioner of the department.
“(b) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”
“(1)) Such elderly person or the individual, agency or organization designated to be responsible for the personal welfare of the elderly person shall have the right to bring a motion in the cause for review of the Probate Court's determination regarding the elderly person’s capacity or an order issued pursuant to sections 17b-450 to 17b-461, inclusive.
‘(c) The Probate Court may appoint, if it deems appropriate, the Commissioner of Social Services to be the conservator of the person of such elderly person.
“(d) In any proceeding in Probate Court pursuant to provisions of sections 17b-450 to 17b-461, inclusive, the Probate Court shall appoint an attorney to represent the elderly person if he is without other legal representation.”
“(b) Upon complaint on oath by any state’s attorney or assistant state’s attorney or by any two credible persons, to any judge of the Superior Court, that he or they have probable cause to believe that any property (1) possessed, controlled, designed or intended for use or which is or has been used or which may be used as the means of committing any criminal offense; or (2) which was stolen or embezzled; or (3) which constitutes evidence of an offense, or that a particular person participated in the commission of an offense, is within or upon any place, thing or person, such judge, except as provided in section 54-33j, may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same оr the person and take into his custody all such property named in the warrant.
“(c) A warrant may issue only on affidavit sworn to by the complainant or complainants before the judge and establishing the grounds for issuing the warrant, which affidavit shall be part of the arrest file. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person, place or thing to be searched. The warrant shall be directed to any police officer or a regularly organized police department or any state policeman or to a conservation officer, special conservation officer or patrolman acting pursuant to section 26-6. It shall state the grounds or probable cause for its issuance and it shall command the officer to search within a reasonable time the penson, place or thing named, for the property specified.”
Concurrence Opinion
concurring. I concur in the result because the practice of allowing petitions for the termination of parental rights to be filed by social workers of the department of children and families (department) is authorized by statute;
First, petitions to terminate parental rights involve a “natural parent’s desire for and right to the companionship, care, custody, and management of his or her children ... an interest far more precious than any property right.” (Internal quotation marks omitted.) Santosky v. Kramer,
The second matter that I am concerned about is that the state’s practice of allowing social workers to file petitions violates, at least, the spirit of the consent decree entered into by the department as a result of a class action suit brought in 1989 in the United States District Court for the District of Connecticut in order to remedy systemic deficiencies in the department. See
Third, “[t]he current caseload of the Attorney General’s Office does not allow for sufficient time [for attorneys to meet with caseworkers] to process child protective cases”; State of Connecticut Court Improvement Project Report (Edmund S. Muskie Institute, University of Southern Maine, 1996) p. 72;
With some hesitation and with great concern, I concur in the result.
See footnotes 1, 3 and 5 of the majority opinion for the relevant text of these provisions.
In his memorandum of decision, Judge Foley concluded that a “person drafting the petition to terminate parental rights” must “exercise [a] high degree of legal skill and great capacity for adaptation to difficult and complex situations.” (Internal quоtation marks omitted.)
Judge Foley found that the filing of mistake filled and improper petitions by department social workers “are regularly occurring with great frequency in juvenile court proceedings throughout the state. They have led to public harm in that: (a) they have delayed the proceedings; (b) they have put the respondents, and the state, to unnecessary expense for lawyers, publication expenses and related costs of service; (c) they have wasted available court time and staff resources; (d) [t]he time invested by [social workers] in preparing inadequate legal cases is time that could far better be spent improving their performance of the social service vocation for which they are trained . . . and (e) they have needlessly extended the already unacceptable time frame for permanent placement and adoption of children.” (Citation omitted; internal quotation marks omitted.)
“The State of Connecticut Court Improvement Project Report was the result of the federal requirement for a comprehensive assessment of the performance of state courts with respect to their adjudication of allegedly abused children.” Pamela B. v. Ment, supra,