In re Devon B. (dissenting)
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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** IN RE DEVON B. DISSENT SULLIVAN, C. J., with whom VERTEFEUILLE and ZARELLA, Js., join, dissenting. The majority concludes that the trial court abused its discretion in denying the motion of the respondent, Tammy M., to cite in the department of mental retardation as a necessary party to this neglect proceeding. I disagree. I would conclude that the trial court has no jurisdiction over the department of mental retardation because the respondent has not exhausted her administrative remedies. I would also conclude that, even in the absence of that bar to the trial court s jurisdiction, the department of mental retardation had no legal interest or obligation in the proceeding and, therefore, is neither a necessary nor an appropriate party. I also believe that the majority s decision will greatly complicate and prolong neglect proceedings, ultimately to the detriment of the very persons whom the majority intends to protect. I address each of these conclusions in turn. First, and most fundamentally, even if it were assumed that the department of mental retardation is failing to meet its statutory obligations to the respondent,1 the respondent has provided no authority for the proposition that the trial court has jurisdiction over the department of mental retardation when the respondent has not exhausted the administrative procedures provided by statute; see General Statutes § 17a-210 (d);2 culminating, if necessary, in an administrative appeal pursuant to General Statutes § 4-183. I do not believe that the trial court can bypass these procedures for determining the respective rights and obligations of the department of mental retardation and its clients and confer on itself jurisdiction over the department of mental retardation simply by pronouncing that that department s presence in a neglect proceeding might facilitate the goal of reunification. Second, even in the absence of this jurisdictional bar, I do not believe that the department of mental retardation has any legal interest or obligation to the respondent in this neglect proceeding, and I would, therefore, conclude that the department of mental retardation is not a necessary, or even an appropriate, party. As a preliminary matter, I note that Practice Book § 918, concerning the addition of parties, does not use the phrase necessary party, and the use of the phrase in cases applying that section has resulted in some confusion in our case law. See W. Horton & K. Knox, 1 Connecticut Practice Series: Practice Book Annotated (4th Ed. 1998) § 9-18, authors comments, p. 311.3 I agree, however, that a party whose presence is absolutely required ; Caswell Cove Condominium Assn., Inc. v. Milford Partners, Inc., 58 Conn. App. 217, 224, 753 A.2d 361, cert. denied, 254 Conn. 922, 759 A.2d 1023 (2000); for the court to render a judgment is an indispensable party and that, as used by the parties in this case, the word necessary is synonymous with indispensable. To determine whether the department of mental retardation is a necessary party in the case, we must review the relevant statutes governing neglect proceedings. General Statutes (Rev. to 2001) § 46b-129 (j), as amended by Public Acts 2001, No. 01-142, § 6, provides in relevant part that [t]he court shall order specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent. . . . In the words of the respondent, these specific steps are a road map . . . by which [the petitioner, the department of children and families] and the courts measure a parent s progress toward reunification. Other subsections of the statute provide that the court may also order the petitioner to take specific steps to return custody of the child to the parent. See General Statutes (Rev. to 2001) § 46b-129 (b) and (d). These provisions are designed to ensure that department takes appropriate measures . . . to secure reunification of parent and child ; In re Eden F., 250 Conn. 674, 696, 741 A.2d 873 (1999); so that the parent s fundamental right to family integrity is not violated. Thus, the specific steps provisions of § 46b-129 have two purposes: first, to instruct the parent on the specific conduct in which he or she must engage in order to satisfy the petitioner and the trial court that he or she is a fit parent and, second, to ensure that the petitioner does what it reasonably can to facilitate, rather than to impede, reunification. The majority has pointed to no provision under the relevant statutes, however, imposing on the department of mental retardation, or, indeed, on anyone other than the respondent and the petitioner, any legal obligation to take steps to reunify the respondent and her son after the neglect finding. Nor is there any allegation that the department of mental retardation has an independent statutory obligation to the respondent, or even the ability, to take steps to ensure that she regains custody of her son. Nevertheless, the majority concludes that the department of mental retardation is a necessary party because it is evident that residential placement which would solve the respondent s homelessness as well as coordination of services, such as parenting classes, best can be provided by the department of mental retardation ; and coordination of efforts between the petitioner and the department of mental retardation is essential to [the] goal of reunification. This conclusion apparently derives from the majority s belief that the petitioner s suggestion that it is up to the respondent to take certain initiatives is Kafkaesque. (Emphasis in original.) I disagree. Although, as the majority points out, the respon- dent is mentally incompetent, it is also the case that the Probate Court has appointed an attorney, Americo Carchia, as the conservator of her person.4 In addition, the trial court appointed an attorney to represent the respondent in the neglect proceedings. In my view, the respondent, aided by Carchia and her attorney, has the sole responsibility to comply with the specific steps ordered by the trial court, including continuing to work with the department of mental retardation. As I have indicated, the respondent has not pointed to any statutory obligation of the department of mental retardation to force the respondent to work with it to regain custody of her son, or, in the absence of such an obligation, to any source of the trial court s authority to issue such an order. Even if it is assumed that the exhaustion doctrine does not deprive the trial court of jurisdiction over the department of mental retardation, it would have jurisdiction only to order that department to comply with its statutory mandate. The record does not establish, however, that it was not already doing so. Because I believe that the department of mental retardation s interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting [the department of mental retardation] ; (internal quotation marks omitted) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 225 26 n.10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997); I would conclude that the department of mental retardation is neither a necessary nor an appropriate party. Moreover, if, as the respondent argues, she is incapable, even with the assistance of her attorney and personal conservator, of continuing to work with the department of mental retardation in the absence of a court order to the department of mental retardation to ensure that she does so, I fail to see, as a practical matter, how the respondent could demonstrate progress in her parenting skills justifying reunification with her son. I also have questions about the temporal duration of a court order to the department of mental retardation. If the respondent and her son ultimately are reunified, will the trial court have continuing jurisdiction to issue orders to the department of mental retardation to ensure that the respondent retains custody of her son and properly cares for him? Is such an obligation within the department of mental retardation s statutory mandate? Did the legislature contemplate that the trial court would take on this supervisory role in neglect proceedings? Is such a role consistent with the court s ultimate responsibility to determine whether the respondent has shown herself to be a fit parent justifying reunification with her son? The majority does not address, much less answer, these questions. Finally, I note that, under the majority s reasoning, any number of persons and entities such as the depart- ment of correction, the probation department, police departments, schools, teachers, counselors, physicians, grandparents, in short, anyone whose participation could facilitate reunification of parent and child must be treated as necessary parties to a neglect proceeding. Indeed, the majority in the present case has strongly suggest[ed] that, on remand, the conservator of the respondent s estate, as well as the department of mental retardation, be made a party to this action. In my view, it is the prospect of a proceeding requiring the presence of all of these parties that is Kafkaesque. I believe that the majority s decision to provide procedural protections that never were contemplated by the legislature will have the unintended effect of greatly and unnecessarily complicating and prolonging the proceedings, to the ultimate detriment of the very parties the majority seeks to protect. I would conclude that the trial court s jurisdiction over the department of mental retardation was barred by the exhaustion doctrine. I would also conclude that, even in the absence of that jurisdictional bar, the department of mental retardation s presence was not absolutely required in order to assure a fair and equitable trial. (Internal quotation marks omitted.) Caswell Cove Condominium Assn., Inc. v. Milford Partners, Inc., supra, 58 Conn. App. 224. Indeed, I would conclude that the department of mental retardation is not even a proper party to this proceeding. I also note that, although the neglect proceeding had been pending for over seven months at the time, the respondent did not file her motion to cite in until one week before trial. This court previously has recognized that it is within the discretion of the trial court to deny a request to join a party where, under all of the circumstances of the case, the request was not timely. Washington Trust Co. v. Smith, 241 Conn. 734, 744, 699 A.2d 73 (1997). Because I would conclude that the trial court did not abuse its discretion in denying the respondent s motion to cite in the department of mental retardation as a party defendant, I respectfully dissent. 1 In her motion to cite in the department of mental retardation, the respondent alleged that the petitioner, the department of children and families, and the department of mental retardation have neglected and refused to coordinate their efforts in a consistent manner so as to provide a package of services to the respondent that are consistent with her needs. She did not, however, refer to the specific statutory provision imposing such an obligation on the department of mental retardation in the context of a neglect proceeding. 2 General Statutes § 17a-210 (d) provides: The parent, guardian, conservator or other legal representative of a person, or the person himself or herself, may request a hearing for any final determination by the department which denies such person eligibility for programs and services of the department. A request for a hearing shall be made in writing to the commissioner. Such hearing shall be conducted in accordance with the provisions of chapter 54 [the Uniform Administrative Procedure Act]. Section 17a-210 (d), in its present form, incorporates certain amendments effected by the enactment of Public Acts 2001, No. 01-140, § 1. The substance of those amendments is not relevant to the present appeal. 3 To understand [Practice Book § 9-18], one should divide the universe into four groups for the purpose of any lawsuit: (1) Those who must be parties to the action or no judgment can enter (cf. Federal Rule 19 [b]); (2) Those who ought to be (or have a right to be) parties to the action, but a judgment can enter without them (cf. Federal Rule 19 [a]); (3) Those who may be (but have no right to be) parties to the action (cf. Federal Rule 20); (4) Those who must not be parties to the action. W. Horton & K. Knox, supra, pp. 310 11. The authors comments to § 9-18 of the Practice Book Annotated indicate that much confusion has arisen out of the use of the word necessary, which does not appear in Practice Book § 9-18. They also state that, as it has been used in the cases of this and other courts, the word [n]ecessary is either redundant of indispensable or of ought to be, and should be purged from the lawyer s lexicon unless confusion is to reign supreme. Id., p. 312. 4 The majority concludes that the record does not support a finding that Carchia was the respondent s personal conservator. The respondent s attorney specifically stated at oral argument before this court, however, that Carchia was her personal conservator. I have no reason to doubt the representation of counsel on this matter.
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