stating in response to defendants' claim that relief sought by plaintiff from defendant chief court administrator "would supersede the rule-making power of the judges of the Superior Court" that "we are unconvinced that the plaintiff's first claim for relief necessarily would result in or be tantamount to an impermissible encroaching by [the defendant chief court administrator] upon judicial rule-making authority"
How later courts described this case
- stating in response to defendants' claim that relief sought by plaintiff from defendant chief court administrator "would supersede the rule-making power of the judges of the Superior Court" that "we are unconvinced that the plaintiff's first claim for relief necessarily would result in or be tantamount to an impermissible encroaching by [the defendant chief court administrator] upon judicial rule-making authority"
- explaining that court orders pertaining to judicial resources are not improper merely because ‘‘there are many competing constraints upon the resources the judicial department has available with which to satisfy other constitutional mandates’’
- stating that "[w]hat is necessarily implied [in an allegation] need not be expressly alleged"
- "[i]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader"
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Gold v. Rowland, 296 Conn. 186 (2010)
244 Conn. 296, 314 , 709 A.2d 1089 (1998) (child’s physical and emotional well-being must be weighed against interest in preserving family integrity), abrogated on other grounds by Gold v. Rowland, 296 Conn. 186 , 994 A.2d 106
The opinion
BORDEN, J.,
concurring and dissenting. I fully agree with and join the majority opinion regarding the defendant Aaron Ment, the chief court administrator. I dissent only from the conclusion reached by the majority that this case is justiciable as to the defendant Linda D’Amario Rossi, the commissioner of the department of children and families (commissioner). 1
*332 The majority treats the two defendants as if the claims against them and the relief available from them are the same. They are not. As the complaint now stands, there are no allegations that, taken as true, would support a justiciable claim against the commissioner. Moreover, there is nothing in the majority opinion that suggests either a violation of any litigant’s constitutional or statutory rights by the commissioner or a remedy that is within the power of a court to order the commissioner to effectuate.
The plaintiffs complaint originally sought “an order directing [the commissioner] to restore to parental custody any child whose parents are subjected to the unlawful practices described in this complaint . . . .” As the majority notes, however, the plaintiff has eliminated that claim for relief from this case. The only other demands for relief that arguably could apply to the commissioner are: (1) “A declaratory judgment that the [commissioner’s] practices described herein violate [General Statutes] § 46b-129 as well as the state and federal constitutions”; and (2) the general claim for “such other remedial orders as may be appropriate based on the evidence adduced at trial.” 2
There are, however, no allegations in the complaint that involve either conduct, or the failure to engage in conduct, by the commissioner resulting in the claimed statutory and constitutional violations of the plaintiffs right to a prompt hearing after issuance of an order of temporary custody — at least no such allegations that *333 could support a justiciable claim. All of the plaintiffs allegations involve the purported failure of the judicial system to afford her such a hearing. It should go without saying that the commissioner has no authority over the operation of the judicial system.
The only allegations that might be read as directed at the commissioner are that: (1) “Upon information and belief, these practices [namely, continuing orders of temporary custody for months without taking evidence, and combining the hearings under § 46b-129 with the final hearings] are the result of a dramatic increase in the number of [temporary custody order] applications sought by [the department of children and families]”; and (2) “The conditions described [namely, a dramatic increase in the number of applications for orders of temporary custody sought by the department of children and families, unreasonably crowded juvenile matters dockets, insufficient staffing of the Superior Court for Juvenile Matters, and inadequate allocation of judicial resources] result from the defendants’ failure to appropriately perform their official duties.” As applied to the commissioner, these allegations amount to a claim that, by bringing more petitions for orders of temporary custody to the court than is justified, she has failed to perform appropriately her official duties. I can discern no other interpretation of these allegations, and the plaintiff has supplied none. In my view, such a claim is nonjusticiable.
The commissioner has the statutory responsibility to file applications for orders of temporary custody when the facts available to her justify such a course of action, in order to protect the health and safety of children. See General Statutes § 17a-101g (c). 3 The commissioner’s *334 discretionary decision to file such applications is at the core of her executive function. In the absence of allegations that she is systematically exercising this responsibility in an arbitrary, malicious or discriminatory fashion — which allegations the plaintiff has not made — a court does not have the power to engage in second-guessing of that function. 4 Doing so simply because the commissioner’s decisions regarding filing applications has resulted in an overload on the judicial system would violate the principle of the separation of powers. Nothing in the majority opinion suggests why a court would have the power to engage in such a process of executive oversight. As to the commissioner, therefore, I would affirm the judgment of the trial court, Wagner, J., striking certain of the plaintiffs demands for relief, and I would reverse the judgment of the trial court, Sullivan, J., denying the commissioner’s motion to dismiss.
Rossi was the commissioner at the time that the plaintiff commenced this action and has been succeeded in that position by Kristine D. Ragaglia. I refer herein to Rossi as the commissioner because she is a defendant only in her representative capacity.
The other two demands for relief are specifically aimed only at the chief court administrator. They are for injunctive or other equitable relief granting: “(a) an order directing [the chief court administrator] to establish procedures for all cases in which an [order of temporary custody] is issued ex parte, including but not limited to immediate appointment of counsel for parents; and (b) an order directing [the chief court administrator] to allocate sufficient resources to the Superior Court for Juvenile Matters to eliminate the unlawful practices described in this complaint . . . .”
General Statutes § 17a-101g (c) provides: “If the Commissioner of Children and Families, or his designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from his surroundings and that immediate removal from such surroundings is *334 necessary to ensure the child’s safety, the commissioner, or his designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child’s parent or guardian. The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section.”
Indeed, at oral argument before this court the plaintiff clarified her allegations by asserting that the commissioner is “abusing her discretion” by seeking too many orders of temporary custody. In my view, this clarification adds nothing to the justiciability of the claim against the commissioner. Whether to seek such an order in any given case is a uniquely fact-bound, discretionary decision. As I indicate in the text of this opinion, the exercise of that discretion lies at the core of her executive power. I see no basis for a court to go beyond its judicial function of determining whether a petition is based on probable cause, by reviewing, on an abuse of discretion basis, the commissioner’s decision to bring the petition in the first place. Oversight of that discretionary decision is no more a judicial function than oversight of a state’s attorney’s decision to prosecute “too many crimes.”