Argued
September 7, 2018 [**]
Procedural
History
Petition
by the maternal aunt for the custody and guardianship of the
respondent mother's minor child, brought to the Probate
Court for the district of Derby, which issued an order
vesting the petitioner with temporary custody of the child;
thereafter, the matter was transferred to the Superior Court
in the judicial district of Ansonia-Milford, where the
respondent filed a motion to vacate the order of temporary
custody; subsequently, the matter was transferred to the
Superior Court in the judicial district of New Haven,
Juvenile Matters, where the parties entered into a stipulated
agreement that, inter alia, transferred guardianship of the
child to the petitioner; thereafter, the court, Conway,
J., denied the respondent's motion to reinstate her
guardianship rights to the child, granted the motion filed by
the guardian ad litem to suspend overnight visitation, and
rendered judgment thereon, from which the respondent appealed
to this court. Affirmed.
Benjamin M. Wattenmaker, assigned counsel, for the appellant
(respondent mother).
Albert
J. Oneto IV, assigned counsel, for the appellee (petitioner).
David
B. Rozwaski, for the minor child.
Louise
Truax and Leslie Jennings-Lax filed a brief for the American
Academy of Matrimonial Lawyers, Connecticut Chapter, as
amicus curiae.
DiPentima, C. J., and Alvord and Bear, Js.
OPINION
BEAR,
J.
The
respondent mother, Kristi F., appeals from the judgment of
the trial court denying her motion for reinstatement of
guardianship of her minor son, Zakai F. The respondent claims
that the court violated her fundamental right to the care and
custody of Zakai under the United States constitution by
denying her motion (1) without a showing that she was unfit,
and (2) without a finding by clear and convincing evidence
that Zakai would be at a substantial risk of physical or
emotional harm if the current guardianship of him by his
aunt, the respondent's sister, were terminated. The
respondent additionally claims that the court abused its
discretion in concluding that her reinstatement as guardian
was not in Zakai's best interest. We disagree with the
respondent's claims and, accordingly, affirm the judgment
of the court.
The
record reveals the following facts and procedural history. In
approximately July, 2013, the respondent voluntarily agreed
to relinquish, and the Probate Court therefore ordered,
temporary guardianship of Zakai to the petitioner, Nikki F.,
who is the respondent's sister and Zakai's maternal
aunt. The parties agreed that Zakai would be cared for
temporarily by the petitioner while the respondent pursued
employment opportunities, secured funds to obtain appropriate
housing, and obtained a reliable vehicle. The respondent
reassumed guardianship and care of Zakai in late January or
early February, 2014. Shortly after returning to the
respondent's care, Zakai was physically assaulted and
seriously injured by the respondent's live-in boyfriend,
Montreal C, while the respondent was at work.[1] Both the
respondent and Montreal C. were criminally charged after the
assault. The charges against the respondent were ultimately
dropped, but the charges against Montreal C. continued to be
prosecuted.[2]
Because
of the respondent's work commitments and Zakai's
emotional and physical state following Montreal C.'s
assault, [3] the respondent agreed that Zakai again
would stay temporarily with the petitioner.[4] Approximately
four or five days after Zakai was placed in the
petitioner's care, the respondent requested that the
petitioner again return Zakai to her care. The petitioner did
not respond to the respondent's request, but instead, on
February 18, 2014, filed a petition for custody and
guardianship in the Probate Court for the district of Derby,
which issued an ex parte order vesting her with temporary
custody of Zakai.
On July
9, 2014, the respondent filed a motion in the Probate Court
for transfer of the case to the Superior Court. On July 16,
2014, the motion was granted and the case was transferred to
the family division of the Superior Court in Milford. On
August 1, 2014, the respondent filed a motion to vacate the
Probate Court order granting the petitioner temporary custody
of Zakai. On September 29, 2014, by agreement of the parties,
the court ordered that (1) a guardian ad litem be appointed
for Zakai; (2) the respondent continue to engage in anger
management counseling, therapy, and parenting classes; and
(3) the respondent be afforded supervised visitation with
Zakai at a location other than the home of the petitioner up
to twice a week, subject to the requirements that the length
of visitation be determined by the petitioner, visitation
occur only at sites acceptable to the petitioner, and only
persons acceptable to the petitioner be present during
visitation.
In the
fall of 2014, the respondent was arrested after an incident
in a public park involving the petitioner and a maternal
uncle of Zakai, and she was charged with threatening and
breach of peace. A criminal protective order was issued
barring any contact between the respondent and the
petitioner, but reserving for the family division of the
Superior Court the issue of the appropriateness of the
respondent's continued contact with Zakai.[5] On April 6, 2015,
the court granted the petitioner's motion to have the
case transferred to the juvenile division of the Superior
Court in New Haven.
On June
18, 2015, the court, Conway, J., ordered the
Commissioner of Children and Families (commissioner) to
conduct a guardianship study. The guardian ad litem moved for
a court ordered psychological evaluation of the parties, and
that motion was granted on December 29, 2015.
A
hearing on the respondent's 2014 motion to vacate the
order of temporary custody and her motion to transfer
guardianship of Zakai to her was scheduled on September 21
and 22, 2016. On September 21, 2016, however, the court
accepted and approved an agreement resolving all outstanding
issues. Pursuant to this agreement, the court transferred
guardianship of Zakai to the petitioner, ordered unsupervised
daytime visits between the respondent and Zakai, and ordered
that, until the protective order was resolved or modified,
the petitioner would have a third party present in her home
while exchanging custody of Zakai with the respondent. The
stipulation also required that any further expansions of the
visitation schedule, including overnight visits, would be
arranged through family therapy.
On June
27, 2017, the respondent filed another motion to reinstate
her guardianship rights to Zakai. Subsequently, the court
again ordered the commissioner to conduct and complete a
guardianship study pursuant to General Statutes §
46b-129 (n). The respondent subsequently filed a motion for
overnight visitation on November 3, 2017, which was heard
with her motion for reinstatement of guardianship. The
hearing on the motions took place on December 5, 11, and 12,
2017. On December 12, 2017, the court elected to hold in
abeyance any definitive ruling on the motion to reinstate the
respondent's guardianship rights and instead ordered that
Zakai immediately commence overnight visits with the
respondent. The court further ordered that the respondent
exclusively was to care for Zakai during the overnight visits
and that there was to be no contact between Zakai and any
unrelated male adults.
On
February 2, 2018, the guardian ad litem moved that the court
suspend overnight visitation, alleging that the respondent
had violated the court's December 12, 2017 order by
having an unrelated male stay at her home while Zakai was
there. On February 15, 2018, the court reconvened the
proceedings to hear testimony and receive other evidence
regarding the guardian ad litem's motion on behalf of
Zakai to suspend overnight visitation and the
respondent's June, 2017 motion to reinstate her
guardianship rights. The court heard additional testimony
from numerous witnesses on February 15, February 28, and
March 1, 2018.
On
March 1, 2018, the court issued its memorandum of decision
denying the respondent's motion for reinstatement of her
guardianship rights and granting the guardian ad litem's
motion on behalf of Zakai to suspend overnight visitation.
The court found that, despite the fact that there had never
been a judicial adjudication of neglect or abuse of Zakai,
reinstatement of the respondent's guardianship rights
pursuant to General Statutes § 45a-611 (b) was not in
Zakai's best interest. The court stated that the
respondent had demonstrated that as of March 1, 2018, she was
capable of adequately providing for Zakai, that they shared a
loving parent-child like bond, and that the respondent and
Zakai enjoyed quality time together when Zakai felt he was in
a safe environment. The court, however, weighed these
findings against testimony and evidence regarding Zakai's
emotional and physical debilitation before and after
overnight visits with the respondent, and his need for
permanency. Specifically, the court credited the testimony of
Zakai's first grade teacher, Zakai's therapist, and
the petitioner rather than that of the respondent.
The
court ultimately found that, "[g]iven the totality of
the circumstances in [Zakai's] life, the degree of early
childhood trauma he has already experienced, the length of
time (four years) he has spent in [the petitioner's]
care, his [attention deficit hyperactivity disorder]
diagnosis and his behavioral and emotional issues, and the
lack of safety and security [he] feels (after three years of
working on the [mother-child] bond), to abruptly remove
[Zakai] from [the petitioner's] care and home,
particularly given his behaviors since December of 2017,
would be cruel, inflict devastating loss and pain on Zakai,
and likely exacerbate rather than ameliorate [Zakai's]
alarming behaviors." The court concluded that, based on
a fair preponderance of the evidence, it was not in
Zakai's best interest to return to the respondent's
care. This appeal followed.
I
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