OLR Bill Analysis

sSB 1438 (as amended by House “A”)

AN ACT CONCERNING NOTICE OF CERTAIN PROBATE COURT HEARINGS AND THE FILING OF CERTAIN REPORTS.

SUMMARY

The bill gives the probate court administrator additional powers over probate courts and probate court judges. Specifically it authorizes him to enforce statutes dealing with probate court administration and with regulations he or she issues. Also, under certain circumstances, it authorizes him to reassign pending cases to a special assignment probate judge or another probate judge and designate a special assignment probate judge to help the judge conduct his or her business. These circumstances involve courts where (1) court facilities do not meet statutory minimum standards or (2) court business has not been conducted properly, with expeditious dispatch, or in accordance with statutes or regulations.

The bill increases the minimum requirements for probate court facilities, requires the probate court administrator to notify a town if the court does not comply with minimum standards, gives the town the chance to submit a compliance plan, and requires probate court regulations to be submitted to the Judiciary Committee for approval.

This bill changes the method for notifying parties in connection with various probate court proceedings. In the following proceedings, it (1) allows service at an individual's usual place of abode (“abode service”) in those instances where current law requires personal service and (2) requires first class mail, instead of regular mail or certified mail, return receipt requested, for those instances that currently require notice by certified mail or regular mail:

1. temporary custody of a minor pending an application to probate court for the removing a guardian or terminating parental rights;

2. application for removal of parent as guardian;

3. appointment of guardian or co-guardians for a minor;

4. application for guardianship of a mentally retarded person;

5. petition to terminate parental rights;

6. Department of Family and Children (DCF) petition to determinate if continuing to care for a child or youth voluntarily admitted to DCF is in the child's or youth's best interest and, if so, whether there is an appropriate case service or permanency plan; and

7. emancipation of a minor.

The bill requires personal or abode service instead of notice by certified mail in one instance and notice by first class mail instead of certified mail in another instance regarding filing a claim for paternity by a putative father.

Finally, the bill delays from March 1 to April 1 of the following year, the date by which probate judges must file a statement of the actual gross receipts and itemized costs of his or her office and the net income for each such calendar year. It also delays from March 1 to April 1 the date by which a probate judge who ceases to hold office must file on the second and third years following the year he ceased to hold office a statement showing his or her net probate court income from the two years. The statements must be filed with the probate court administrator and signed under penalty of false statement.

*House Amendment “A” adds the provisions concerning the powers of the probate court administrator, minimum standards for probate courts, and special assignment probate judges.

EFFECTIVE DATE: October 1, 2007, except for the provisions relating to probate court administration, which become effective July 1, 2007.

MINIMUM STANDARDS FOR PROBATE COURT FACILITIES ( 501)

The law requires the town or towns comprising each probate district to provide court facilities meeting minimum standards specified by statute. Existing law requires them to provide the use and maintenance of microfilming equipment and the necessary supplies, including record books, or the equipment to produce records. The bill expands this duty to include electronic, digital, microfilming, or similar systems required to maintain, provide access to, and produce court records, and the necessary supplies for such systems, equipment, and records.

ADDITIONAL POWERS OF PROBATE COURT ADMINISTRATOR ( 501)

By law, if a town does not provide the court facilities required by law, the probate court administrator must offer in writing to meet with the judge and the responsible local officials. The Probate court administrator may subsequently waive or modify the application of a particular requirement for the court.

The bill requires the probate court administrator to provide written notice, by first class mail, to the probate judge of the district and the chief executive officer of the town in which the court is located, on or before October first of any year in which a town fails to provide suitable court facilities. The notice must specify the statutory requirements that are not met and require a plan to meet them. By January first of the following year, the town's chief executive officer, or his or her representative, must file the plan and implementation schedule with the Probate court administrator.

By law, if court facilities do not comply with the minimum standards, the probate court administrator must also either (1) submit a report to the Judiciary Committee together with a recommendation that the probate district be abolished as a separate district and be consolidated with a contiguous district where suitable court facilities can be provided or (2) if, in the probate court administrator's opinion, abolition is not in the public interest and judicial action is necessary to provide suitable court facilities, bring an action in the Superior Court to enforce the requirement to provide such facilities. The bill requires the probate court administrator to do so by February first of the year after he or she first provides notice to the town.

RULE MAKING AND ENFORCEMENT AUTHORITY ( 502)

The bill gives the probate court administrator the authority to administer and enforce the statutes dealing with probate court administration, the bill's provisions, and the regulations he or she issues to ensure performance of the duties of probate judges and clerks ( 502(a)).

Current law gives the Probate court administrator two types of regulation making authority. One way authorizes him to issue regulations for certain purposes following certain procedures. The other authorizes him to adopt regulations for other purposes following the procedures in the Uniform Administrative Procedures Act, which governs the adoption of regulations by all administrative agencies (see BACKGROUND).

Power to Issue Regulations

The bill expands the probate court administrator's authority to issue regulations for the administration of probate court to include:

1. auditing,

2. reassignment and transfer of cases;

3. training of court personnel and continuing education programs for judges of probate and court personnel; and

4. the enforcement of the probate administration provisions of the statutes, the bill, and regulations, including recovery of expenses associated with any such enforcement, as the regulations permit.

The bill gives the probate court administrator the authority to issue instead of adopt, regulations concerning (1) the annual weighted-workload, which is used to determine the maximum amount of net income; (2) payments to the state treasurer, (3) the penalty for a deficiency in connection with the compensation of probate court judges, (4) and group hospitalization and medical and surgical insurance for probate court judges and employees ( 506-509).

By law the probate court administrator may adopt regulations that concern (1) the availability of judges; (2) court facilities, personnel, and records; (3) hours of court operations; and (4) telephone service.

Referral to the Judiciary Committee for Approval ( 502(c)(2))

The bill requires that any proposed new regulation and any change in an existing regulation issued or adopted on or after July 1, 2007 must be submitted to the Judiciary Committee for approval or disapproval in its entirety. But if more than one proposed new regulation or change in an existing regulation is submitted at the same time, the committee must approve or disapprove all of them together in their entirety. Unless the committee disapproves them within 90 days after submission, each regulation becomes effective on the date specified in such regulation, as long as it is at least 90 days after promulgation.

Probate Court Administrator's Oversight ( 502(d))

The law gives the probate court administrator the duty and authority to regularly review the auditing, accounting, statistical, billing, recording, filing, and other procedures of the courts of probate. The bill also requires him or her to review their administrative procedures.

The law requires the Probate court administrator, or his or her designee to visit each court of probate at least once every two years to examine their records and files. It also authorizes him or her to make any additional inquiries to ascertain whether the business of the court has been conducted in accordance with law, rules of the courts of probate, and the canons of judicial ethics. The bill also authorizes him or her to determine whether the courts are complying with regulations the administrator issued.

ENFORCEMENT OF STATUTES AND COURT RULES ( 503)

Notice

The bill allows the probate court administrator to meet with probate judges to correct any deficiencies if the administrator determines that:

1. the business of the judge's court has not been conducted properly, with expeditious dispatch, or in accordance with law, the regulations the administrator issued; or

2. suitable court facilities are not being provided for a court of probate in accordance with legal requirements.

If the probate court administrator determines that additional action is warranted, he or she must give the judge written notice. The notice must include the administrator's reasons and a proposed disposition, which may include one or more of the following actions:

1. reassignment of any case pending before the court to a special assignment probate judge or another probate judge by means of a citation in the manner provided in law,

2. designation of a special assignment probate judge to assist the judge to conduct its business, or

3. recovery of expenses from the judge of such court, as permitted by regulation.

Hearing ( 503(b)(1))

Under the bill, within 10 business days after receiving this notice, the probate judge may file with the probate court administrator a request for a hearing before a review panel. The review panel must consist of (1) a probate judge selected by the administrator, (2) a probate judge selected by the judge who received the notice, and (3) a probate judge jointly selected by the judges already selected. If the selected judges are unable to make a joint selection, the Supreme Court chief justice will select the third judge.

Within 15 business days after the filing of a request for a hearing, the review panel must hold a hearing on the probate court administrator's determination and proposed disposition of the matter. The probate court administrator and the probate judge who is the subject of the action have a right to be heard and present evidence at the hearing. The probate court administrator has the burden of proving that probate judge received written notice from him.

After the hearing, a majority of the members of the review panel may affirm, dismiss, or modify the probate court administrator's determination and proposed disposition. The bill gives the Probate court administrator and the judge the right to request that the matter be heard on the record.

If the notified judge does not request a hearing in time, the probate court administrator's proposed disposition takes effect immediately after the 10 business day period expires.

Emergency Action ( 503(c)(2))

If the probate court administrator, in consultation with the chief court administrator, determines that an emergency exists in a pending case because it has not been conducted within the required time frames, the Probate court administrator's proposed disposition takes effect when the probate judge receives notice. The proposed disposition is subject to the judge's right to a hearing and the decision of the review panel. But the validity of any order or decree made, proceeding held, or other action taken by a special assignment probate judge or another probate judge pursuant to such proposed disposition in such a matter is not affected by any review panel's subsequent decision.

Right to Appeal ( 503 (e))

The bill gives any probate judge who is aggrieved by any decision to appeal to the superior court for the judicial district in which the judge's probate district is located. The appeal must be taken within 30 days after the decision. Appeals from any decision rendered in a case after a record is made must be on the record and not result in a new trial. In any such appeal, the court may grant whatever relief it determines appropriate.

Regulations ( 503(d))

The bill requires the probate court administrator to issue regulations concerning rules of procedure for review panel hearings. The rules must address:

1. the notice of the probate court administrator's determination and reasons for it;

2. the content of a request for a hearing and notice of hearing;

3. hearing procedure;

4. evidence, subpoenas, productions of documents, continuances, intervenors, and the hearing record, and

5. the right to cross-examine, present arguments, and inspect and copy relevant materials.

SPECIAL ASSIGNMENT PROBATE JUDGES ( 504)

Nomination and Appointment

The bill authorizes the Supreme Court's chief justice to appoint special assignment probate judges nominated by the probate court administrator, from among current probate judges. A nominee must have demonstrated the special skill, experience, or expertise necessary to serve as a special assignment probate judge. A special assignment probate judge shall serve at the chief justice's pleasure.

The bill requires the probate court administrator to issue regulations to establish requirements concerning the responsibilities of special assignment probate judges and the number, geographic distribution, and expertise of such judges.

Compensation ( 504)

The bill authorizes the probate court administrator, subject to the chief court administrator's approval, to fix the compensation of special assignment probate judges. The compensation is paid from the Probate Court Administration Fund on the probate court administrator's order. The bill specifies that the compensation, including compensation that a special assignment probate judge receives as a probate judge of the district to which he or she was elected, may not exceed the maximum compensation for probate judges in a high volume court. (The maximum compensation for a high volume court is 75% of the salary of a Superior Court judge. Currently, a Superior Court judge is paid $ 146,780. Thus, the maximum a probate judge can earn is $ 110,085. )

The bill specifies that a special assignment probate judge is only entitled to benefits due him or her as a probate judge and can not receive additional benefits, except compensation specified by the bill.

MINIMUM HOURS ( 505)

The bill requires that probate courts be open to the public for the conduct of court business not less than 20 hours a week, Monday through Friday, excluding holidays, on a regular schedule between 8: 00 a. m. and 5: 00 p. m. The judge may close a court temporarily for inclement weather, an emergency, or other good cause. The judge must immediately notify the probate court administrator of a temporary closing, together with the reason for the closing and the date and time when the court will reopen. The bill authorizes the probate court administrator, for good cause shown, to modify these requirements.

TEMPORARY CUSTODY OF A MINOR PENDING AN APPLICATION TO PROBATE COURT FOR THE REMOVAL OF A GUARDIAN OR TERMINATION OF PARENTAL RIGHTS ( 1)

Under current law, in a hearing for temporary custody of a minor, the court must order notice by regular mail to the DCF commissioner and by personal service by a state marshal, a constable, or other legally authorized officer to both parents and to the minor child, if over 12 years of age, at least five days before the hearing date.

The bill, instead, requires notice by first class mail to the DCF commissioner and allows abode or service at the parent's usual place of abode or the minor's usual place of abode, as the case may be.

Under current law, if a parent or the father of a minor child born out of wedlock who is either an applicant or who signs under penalty of false statement a written waiver of personal service on a form provided by the probate court administrator, the court may order notice to be given by certified mail, return receipt requested, deliverable to addressee only, at least five days prior to the date of the hearing.

The bill, instead, allows notice to be given by first class mail if personal or abode service is waived.

APPLICATION FOR REMOVAL OF PARENT AS GUARDIAN ( 2)

In a hearing on an application to remove a parent or guardian, current law requires the court to order notice by regular mail to the DCF commissioner and by personal service to both parents and the minor, if over 12 years of age, at least 10 days before the hearing. The bill, instead, requires notice by personal service or service at the parent's usual place of abode or the minor's usual place of abode, as the case may be.

Under current law, instead of personal service on a parent or the father of a child born out of wedlock who is either a petitioner or who signs under oath a written waiver of personal service on a form provided by the probate court administrator, the court may order notice to be given by certified mail, return receipt requested, at least 10 days before the hearing date. The bill, instead, allows notice to be given if personal or abode service is waived by first class mail.

Under current law, if the parents reside out of or are absent from the state, the court must order notice to be given by certified mail, return receipt requested at least 10 days before the date of the hearing. The bill allows notice by first class mail instead.

APPOINTMENT OF GUARDIAN OR CO-GUARDIANS FOR A MINOR ( 3)

The bill requires the court to order notice of the hearing to be given to the minor, if over 12 years of age, by first class mail instead of by certified mail, return receipt requested, deliverable to the addressee only, at least 10 days before the date of the hearing. It requires notice by first class instead of regular mail to be given to the petitioner and all other parties in interest known by the court.

APPLICATION FOR GUARDIANSHIP OF A MENTALLY RETARDED PERSON ( 4)

The bill requires the probate court to order notice by first class mail, instead of certified mail, regarding the appointment of a guardian of a mentally retarded person to the following:

1. the respondent's parents, if they are not the applicants;

2. the respondent's spouse, if the spouse is not the applicant;

3. the respondent's children, if any; and

4. the person in charge of the hospital, nursing home, residential facility, or other institution in which the respondent may reside.

PETITION TO TERMINATE PARENTAL RIGHTS ( 5)

Regarding petitions to terminate parental rights, the bill requires that notice of the hearing and a copy of the petition, certified by the petitioner, the petitioner's agent or attorney, or the court clerk must be served at least 10 days before the hearing by personal service or abode service on the following persons who are within Connecticut:

1. the minor child's parent or parents, including any parent removed as guardian;

2. the father of any minor child born out of wedlock, if at the time of the filing of the petition (a) he was adjudicated the father by a court of competent jurisdiction, (b) he has acknowledged in writing that he is the father, (c) he has contributed child support regularly, (e) his name appears on the child's birth certificate, (f) he has filed a paternity claim, or (g) he has been named in the petition as the father of the child by the mother; and

3. the guardian or any other person whom the court deems appropriate.

The bill requires notice by first class mail, instead of certified mail, return receipt requested, on the commissioner of Children and Families and the attorney general.

Under current law, the court may order notice to be given by certified mail return receipt requested, deliverable to addressee only to a parent or the father of a child born out of wedlock who (1) is either a petitioner or (2) signs under penalty of false statement a waiver of personal service. The bill instead allows service by first class mail if personal or abode service is waived.

DCF PETITION TO DETERMINATE IF CONTINUATION OF CARE FOR A CHILD VOLUNTARILY ADMITTED TO DCF IS IN THE CHILD'S BEST INTEREST ( 6)

The bill requires the court to order notice of the hearing to be given by first class, instead of regular, mail at least five days before the hearing to the DCF commissioner, and by first class mail, instead of certified mail, return receipt requested, at least five days before the hearing to the parents or guardian of the child and the minor, if over age 12.

EMANCIPATION OF A MINOR ( 7)

Current law requires the court to cause notice of an emancipation hearing to be served on the minor and the minor's parent, if the parent is not the petitioner, at least seven days before the hearing date, by a state marshal, constable, or indifferent person. The bill specifies that this may be by either personal service or service at the minor's place of abode and the parent's place of abode.

The bill requires the court to direct notice by first class mail instead of certified mail to the parent, if the parent is the petitioner.

By law, the court may order whatever notice it directs to the DCF commissioner, the attorney general, and other persons having an interest in the minor.

FILING A CLAIM FOR PATERNITY BY A PUTATIVE FATHER ( 8)

Current law requires that within five days after the filing of a claim for paternity, the judge must order a certified copy of the claim to be mailed by certified mail to the mother or prospective mother of such child at the last-known address shown on the claim for paternity and to the Attorney General. The bill instead requires personal or abode service on the mother or prospective mother and service by first class mail on the Attorney General.

BACKGROUND

Probate Court Administrator's Regulation Making Authority

By law the probate court administrator has two types of regulation making authority. One way authorizes him to issue regulations for certain purposes following certain procedures. The other authorizes him to adopt regulations for other purposes following the procedures in the Uniform Administrative Procedures Act, which governs the adoption of regulations by all administrative agencies.

The probate court administrator may adopt regulations, in accordance with the Uniform Administrative Procedures Act (UAPA), concerning the availability of judges, court facilities, court personnel and records, hours of court operation, and telephone service. Among other things this process requires proposed regulations to be presented to the Legislative Regulation Review Committee for approval.

By law the process to issue or adopt regulations requires either the probate court administrator or the Probate Assembly's executive assembly to propose them. Any regulation proposed by the Probate court administrator must be submitted to the executive committee for approval. Any regulation proposed by the executive committee must be submitted to the probate court administrator for approval. If either fails to approve a proposed regulation, it may be submitted to a panel of three Superior Court judges the Supreme Court's Chief Justice appoints. The panel may either approve or reject the proposed regulation.

Probate Hearings on the Record

By law, whenever, in any court of probate, the parties or their attorneys agree in writing, the judge may call in a competent and disinterested person to act as the official stenographer. The stenographer's compensation must be paid by the parties in whatever proportion the judge decides, except that the compensation may not exceed that of the official court reporter of the Superior Court (CGS 51-72).

Each stenographer called in and acting under CGS 51-72 must be sworn and has the same powers and duties as official court reporters. Appeals from any decision rendered in any case after a record is made under this section and section 51-72, must be on the record and not in a new trial (CGS 51-73).

Related Legislation

sSB 1272 (File 667) contains provisions that are similar to the provisions in House Amendment “A.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

Yea

40

Nay

0

(04/11/2007)

Human Services Committee

Joint Favorable

Yea

18

Nay

0

(05/16/2007)