Attorney General: Mr. William J. Cibes, Jr., Secretary, Office of Policy and Management, 1992-005 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

February 20, 1992

Mr. William J. Cibes, Jr.
Secretary, Office of Policy and Management
80 Washington Street
Hartford, Connecticut 06106

Dear Mr. Cibes:

You have requested our opinion whether the Office of Policy and Management ("OPM") must provide a grant under Conn.Gen.Stat. 12-170d1 to persons who are minor children living with their parents. We believe such persons are not eligible for a grant under the specified statute if they have not been emancipated by their parents. We base our conclusion upon the following analysis.

You have related the following facts to us. You have received applications for a grant in refund of rent which, allegedly, the applicants have actually paid on real property they occupy as their home. The particular applicants are persons under the age of sixteen who are eligible to receive total disability benefits under the federal Social Security program. These applicants receive income in the form of Supplemental Social Security payments. They reside in the domicile of their parent(s) who "charge" them a rent to reside there.

The grant program under which the applicants have applied is set forth in Conn.Gen.Stat. 12-170d to 12-170i, inclusive. Section 12-170d provides in relevant part:

... any renter of real property, ... which he occupies as his home, who meets the qualifications set forth in this section, shall be entitled to receive in the following year in the form of direct payment from the state, a grant in refund of utility and rent bills actually paid by or for him on such real property.... To qualify for such payment by the state, the renter shall meet qualification requirements in accordance with each of the following subdivisions: (1) ... (B) be under age sixty-five and eligible in accordance with applicable federal regulations, to receive permanent total disability benefits under Social Security, has not been engaged in employment covered by Social Security and accordingly has not qualified for benefits thereunder but who has become qualified for permanent total disability benefits under any federal, state or local government retirement or disability plan, including the Railroad Retirement Act and any government-related teacher's retirement plan, determined by the secretary of the office of policy and management to contain requirements in respect to qualification for such permanent total disability benefits which are comparable to such requirements under Social Security; (2) shall reside within this state and shall have resided within this state for at least one year or his spouse who is domiciled with him shall have resided within this state for at least one year and shall reside within this state at the time of filing the claim and shall have resided within this state for the period for which a claim is made; (3) shall have total adjusted gross income as determined for purposes of the federal income tax plus any other income not included in such adjusted gross income, the total of which shall hereinafter be called "qualifying income", during the calendar year preceding the filing of his claim in an amount of not more than twenty thousand dollars, jointly with spouse, if married, and not more than sixteen thousand two hundred dollars if unmarried, provided such maximum amounts of qualifying income shall be subject to adjustment in accordance with subdivision (2) of subsection (a) of section 12-170e, and provided the amount of any Medicaid payments made on behalf of the renter or the spouse of the renter shall not constitute income; and (4) shall not have received financial aid or subsidy from federal, state, county or municipal funds, excluding social security receipts, emergency energy assistance under any state program, emergency energy assistance under any federal program, emergency energy assistance under any local program, payments received under the federal Supplemental Security Income Program, payments derived from previous employment, veterans and disability benefits and subsidized housing accommodations, during the calendar year for which a grant is claimed, for payment, directly or indirectly, or rent, electricity, gas, water and fuel applicable to the rented residence....

It is our understanding that the applicants in question meet requirements (2) through (4) of 12-170d and the only question is their eligibility under subdivision (1) as minor children who pay rent to their parents so they can reside in the family home.

Section 12-170d uses the term "renter" but does not define it. A renter eligible for a grant under the statute can be someone under the age of sixty-five so long as he meets the other specific requirements of 12-170d(1), (2), (3) and (4). The statute itself offers no glimpse of what the legislature intended with respect to whether minor children are contemplated as "renters" within the meaning of the statute. We have reviewed the legislative history of this program but it is silent on the issue of "renters" under the age of majority.

We therefore turn to the common law for guidance. Initially, we note that there is a tenet of statutory construction which provides that a statute in derogation of the common law must be strictly construed. State v. Nugent, 199 Conn. 537, 508 A.2d 728 (1986). Also, a right not existing at common law is limited by the express terms of the statute and it cannot be extended by the court. Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 137, 479 A.2d 231 (1984).

The statute in question clearly establishes a right that was nonexistent under the common law. Only by virtue of Conn.Gen.Stat. 12-170d are certain renters of real property in this state entitled to a grant from the State to cover a portion of their monthly rental payments.

The term "minor" is defined by statute. Conn.Gen.Stat. 1-1d states:

Except as otherwise provided by statute, on and after October 1, 1972, the terms "minor", "infant" and "infancy" shall be deemed to refer to a person under the age of eighteen years and any person eighteen years of age or over shall be an adult for all purposes whatsoever and have the same legal capacity, rights, powers, privileges, duties, liabilities and responsibilities as persons heretofore had at twenty-one years of age, and "age of majority" shall be deemed to be eighteen years.

(Emphasis added.)

In Sillman v. Sillman, 168 Conn. 144, 147, 358 A.2d 150 (1975), the court discussed the issue of majority within the context of the public act now codified as 1-1d. It stated:

... every section of the act is consistent with the expressed legislative intent to make eighteen-year-olds adults "for all purposes whatsoever." General Statutes 1-1d ( 1 of the act). Under the act an eighteen-year-old may vote, borrow money, sell or buy liquor, and engage in licensed occupations. Once the child reaches eighteen years of age, guardianship is terminated; General Statutes 45-43 ( 66 of the act); and parents no longer have a legal duty to support the child. General Statutes 17-320,2 53-304 ( 29 and 76 of the act).

(Emphasis added.) Accord Cariseo v. Cariseo, 190 Conn. 141, 142, 459 A.2d 523 (1983); Kennedy v. Kennedy, 177 Conn. 47, 51-52, 411 A.2d 25 (1979).

Thus, for purposes of Conn.Gen.Stat. 12-170d, an applicant who is under age eighteen has a legal right to support and maintenance from his parents unless the child is emancipated. The focus then of our inquiry must shift to the issue of whether or not the minor child is emancipated.

"Emancipation" is a legal concept which has been considered by both our state Legislature and Supreme Court. A minor who has reached his sixteenth birthday may be declared emancipated by order of the Superior Court upon a petition brought by the minor. See Conn.Gen.Stat. 46b-150 to 46b-150e, inclusive. Section 46b-150d sets forth the effects of an order of emancipation. Included within this provision are the following:

... (d) the minor shall be entitled to his own earnings and shall be free of control by his parents or guardian; (e) the minor may establish his own residence: ... (k) the parents of the minor shall no longer be the guardians of the minor under section 45a-606; ... (m) the parents shall be relieved of all obligation to support the minor; ...

Section 46b-150e provides: "Nothing in sections 46b-150 to 46b-150e, inclusive, shall affect the status of minors who are or may become emancipated under the common law of this state." Thus, the provisions of 46b-150 et seq pertain to one manner in which a minor may be declared emancipated. Emancipation may also occur through actions of the parent and child without the formality of a court proceeding. Such actions are not restricted to minors who are sixteen years of age or older as required by statute.

Thus, under the Connecticut common law, a minor may be declared emancipated. In Wood v. Wood, 135 Conn. 280, 283-85, 63 A.2d 586 (1948), the Court stated:

Emancipation, defined generally, is "an act by which a person who was once in the power or under the control of another is rendered free." 1 Bouvier, Law Dictionary (3d Rev.) p. 1004. "A minor is emancipated if placed in a new relation inconsistent with the former relation as part of his parent's family." Plainville v. Milford, 119 Conn. 380, 384, 177 A. 138. As related to the instant case, "Emancipation is the grant by a father .. either written or oral, or by inference from the conduct of the parent, of the right to the minor's services during his minority, as well as to the control, for most purposes, of his person. Kenure v. Brainerd & Armstrong Co., 88 Conn. 265, 267, 91 Atl. 185; 1 Schouler on Domestic Relations (6th Ed.) 807-809." Mesite v. Kirchenstein, supra.... "An 'implied emancipation' results when the parent, without any express agreement, by his acts or conduct impliedly consents that his minor son may leave home and shift for himself, have his own time, and the control of his earnings, and it may be inferred from and shown by the circumstances." Rounds Bros. v. McDaniel, 133 Ky. 669, 676, 118 S.W. 956.

Whether a child is in fact emancipated is a question of fact; emancipation may be express or implied by the parent's acts or conduct. Id. at 284. Each individual case must be decided on its own facts. The Wood case enunciated the three essential elements of common law emancipation. These consist of (1) consent by the parent to the child undertaking outside employment; (2) surrender to the child's absolute control of all the child's earnings therefrom; and (3) not claiming nor asserting any right to control the child's activities. As the court stated, "[t]hese facts afford strong support for an inference of emancipation." Id. at 284. In Wood the court noted that the child continued to live at home without paying for her bed and board. "This was, however, but one circumstance to be considered in determining whether the defendant [father] had in fact relinquished his right of control.... The release from bondage of a minor child 'is not made invalid by the fact that the child remains at home and continues to be supported by his father.' Dunlap v. Dunlap, supra [84 N.H. 352]." Id. at 285.

In the cases you bring to us, the applicants' parents charge them rent for their shelter,3 albeit the family residence. This is one indication that these children are emancipated. However, an inquiry must be made to determine, in each case, whether the parents have surrendered to the child absolute control over their earnings,4 in these cases their Social Security disability payments, as well as control over the child's activities. The burden of proving emancipation rests with the applicant, not OPM. Of course, the production of a Superior Court order of emancipation issued pursuant to 46b-150b would be one way of proving emancipation.

We trust the guidelines set forth in this opinion will assist you in discerning which applicants are eligible for a grant under Conn.Gen.Stat.  12-170d.

Very truly yours,

Richard Blumenthal
Attorney General

William J. Prensky
Assistant Attorney General


October 17, 1991

The Honorable Richard Blumenthal
Attorney General
55 Elm Street
Hartford, CT 06106

Dear Mr. Blumenthal:

RE: Connecticut General Statutes Section 12-170d Partial State Refund of Rent and Utility Bills Paid by Certain Renters Age Sixty-five or over or Renters under Age Sixty-five with Permanent Total Disability.

We respectfully request a formal opinion on the matter of whether this agency should be paying rent refund monies to persons who are minor children living with their parent(s).

Certain applicants have made application under Section 12-170d for rent refunds. These persons are minors (under the age of sixteen), who are eligible to receive total disability benefits under Social Security, receive income in the form of Supplemental Social Security payments, and live in the domicile of the parent(s). The parent(s) "charge" their child a rent.

Our question is whether the support of a minor child living with the parent(s) in the home of the parent(s) qualifies the child as a renter as set forth in Section 12-170d.

If you have any questions, please contact Frederick Chmura at 566-4644.

Respectfully submitted,

William J. Cibes, Jr.

1 The Secretary of OPM has statutory authority over this grant program. Section 12-170f sets forth the procedures for obtaining the grant.

(a) Any renter, believing himself entitled to a grant under section 12-170d for any calendar year, shall make application to the assessor ... of the municipality in which he resides ... for such grant on or after May fifteenth and not later than September fifteenth of each year with respect to such grant for the calendar year preceding each such year, on a form prescribed and furnished by the secretary of the office of policy and management to the local assessors.... When the assessor ... is ... satisfied that the applying renter is entitled to a grant, such assessor ... shall issue a certificate of grant, in triplicate, in such form as the secretary of the office of policy and management may prescribe and supply showing the amount of the grant due. The assessor ... shall forward the original copy and attached application to the secretary of the office of policy and management.... After verification of the amount of the grant the secretary of the office of policy and management shall, not later than August thirty-first of each year prepare a list of certificates approved for payment by him, and shall thereafter supplement such list monthly. Such list and any supplements thereto shall be approved for payment by the secretary of the office of policy and management ...

2 This statute is now codified as Conn.Gen.Stat. 46b-215.

3 We assume the applicants have satisfied you with sufficient proof that there is in fact a leasehold arrangement; e.g., a written lease, cancelled checks drawn by the minor applicant to the order of the parent or rent receipts issued to the minor applicant.

4 The parents of the minor children applying for the grants under Conn.Gen.Stat. 12-170d actually receive the Social Security disability payments on behalf of the minor children. "[S]ocial security payments made by the federal government are earned in part by the [parent] and are not altogether a gift from the federal government." Fowler v. Fowler, 156 Conn. 569, 574, 244 A.2d 375 (1968).

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