Opinion
No. K09-CP06-010613-A
August 25, 2008
MEMORANDUM OF DECISION
Procedural History:
On August 2, 2007, Nevaeh C. born August 6, 2001, was adjudicated neglected and a disposition of protective supervision was ordered. Karena M. (mother) was custodial and received the order of protective supervision. Norman C. (father) was non-custodial.
On September 20, 2007, an order of temporary custody was granted to the Commissioner of the Department of Children and Families (DCF) and on October 30, 2007, the disposition was modified to commitment to DCF.
On September 28, 2007, DCF was ordered to initiate an interstate compact (ICPC) on behalf of father in the State of Florida.
On March 7, 2008, an ICPC was received approving father as a resource in the State of Florida.
Exhibit #F.
On March 12, 2008, Norman C., father of Nevaeh (child), moved the court to revoke commitment of Nevaeh to DCF and transfer custody and guardianship of the child to him.
On May 16, 2008, DCF filed a Motion to Review Permanency Plan seeking approval of the plan to reunify the child with her father, Norman C., alleging that the cause for commitment no longer existed, that revocation of the commitment was in the child's best interest, and that DCF had made reasonable efforts to achieve the permanency plan.
On June 5, 2008, mother filed an objection to the Permanency Plan.
On July 14, 2008, mother filed a motion to revoke commitment and transfer guardianship of Nevaeh to maternal grandfather (MGF), Wayne P. whose motion to intervene was granted March 25, 2008, and in whose care Nevaeh was placed by DCF as a relative foster care giver on November 21, 2007.
On July 17, 2008, father filed an objection to mother's motion of July 14, 2008.
All of the above motions and objections were consolidated into a hearing held August 11, 2008, and this memorandum of decision is rendered in response to the various motions.
DCF supports and adopts father's motion to transfer custody and guardianship to him.
Mother acknowledges that she is not at this time a placement resource.
All parties agreed and stipulated to the fact that the cause for commitment no longer exists. The parties agreed upon eight exhibits being entered as full exhibits. Wayne P., DCF social worker Nucci, father, and guardian ad litem Ansell all appeared and testified.
Since the parties have stipulated and the court agrees that the cause for commitment no longer exists, the sole issue before the court is the changing of legal status and placement of Nevaeh with father or with Wayne P., maternal grandfather and current relative foster caregiver.
Finding of Facts:
The court finds the following facts by a fair preponderance of the evidence:
Nevaeh, now age seven years, has resided with MGF for eight and a half months, having previously resided with mother, with whom she has a bond. MGF has clearly been a fine resource for the child and has served in the same capacity for Nevaeh's half-sister, Tionna, age three years and four months. Tionna has chronic hearing impairment and Nevaeh has been a support to her in communication and interpretation. There is a close bond among these family members. Nevaeh is described as out-going, talkative, and friendly. She is apparently a well-adjusted child who desires to please her family and caregivers.
Father had the upbringing of a boy in a large Navy town, Norfolk, Virginia. His choices while growing up were poor and he had little aversion to trouble. The same carried over to the time his family moved to Connecticut when his father, a Navy Master Chief, was assigned to the Groton Naval Base. He incurred arrests for drug and assault charges and after a conviction of violation of probation he served four and one-half years beginning in March 2001. Nevaeh was born six months later. Father's early involvement with Nevaeh consisted of visits while incarcerated.
Upon his release he was paroled to his mother in Florida and he currently resides in that state near her. He has turned his life around, matured and recognized the inappropriateness of many of his past behaviors. He has made many positive changes in his life in the past few years. He is gainfully employed as a barber while also playing semi-professional football. In 2007, after dating for two years, he married Deidra B. They live in an appropriate and adequate home with five bedrooms. There are currently three children living there with father and his wife. While recognizing the mistakes of his past, father notes that they made him the person he is today. In a court-ordered evaluation, Dr. Cheyne notes the following:
[Father] has appropriate expectations for children and understands child growth and development. He has an appropriate level of empathy and he understands and values children's needs. He expects strict compliance, but he values alternatives to physical discipline. He supports appropriate family roles and has his needs met by finding comfort, support and companionship from peers, instead of from his children. He places a high value on children's ability to solve problems and empowers children to make good choices. He believes that he has a good relationship with Nevaeh and values his role as a parent. This was supported by the quality of their interaction evaluation. He does not find parenting to be stressful and does not consider Nevaeh to be a challenging child to parent.
Exhibit #G, page 5.
Father has two other children who visit him during the summer months. Nevaeh has had adequate contact with him since his release and they enjoy each other's company. There is a bond which has developed since his release from incarceration. They have a healthy father-daughter relationship.
Exhibit #C, third (unnumbered) page.
Nevaeh has expressed her desire both to her attorney and the guardian ad litem that while she enjoyed her extended visit with father in Florida, she preferred to live in her current placement with Wayne P. She is closely bonded to her little half-sister and does not want to be separated from her. This is a strong motivating force. At the same time, she has demonstrated her affection for her father and the desire to be with him, as enunciated in Dr. Cheyne's report at page 7. Dr. Cheyne also notes, ". . . Nevaeh seems to have established a connection to others in [father's] household. It is anticipated that Nevaeh will transition easily to [father's] home." Father is taking appropriate steps to prepare for the possibility that Nevaeh may possibly be coming to live with them permanently including those related to her schooling. He affirms that he will assure regular contact between Nevaeh, Tionna, mother and MGF. This court finds him to be sincere in this commitment.
Exhibit #G, page 8.
Of concern to Nevaeh's counsel and GAL is the possibility of harm to Nevaeh's half-sister who depends upon her for communication assistance. While she is going to be tested further and fitted with hearing devices which hopefully will assist her, she could use Nevaeh for some time to come. They fear also that it would be traumatic for Nevaeh to be separated from her. Consequently, they feel that it is in Nevaeh's best interest to remain with Wayne and Tionna. This court received no evidence that separation would be traumatic, although it would be disappointing for her for some brief period of time. However, all indications are that she is resilient, compliant and loving of all parties. Nevaeh, Tionna, mother, father and DCF owe Wayne a great deal of gratitude for the responsible, caring, loving way that he stepped up to care for Nevaeh when asked.
Applicable Law:
This is not a case which parallels Stacy G., 94 Conn.App. 348 (2005) or Cameron C., 103 Conn.App. 746 (2007), because DCF and not MGF is the guardian of Nevaeh and DCF concurs with father's motion to transfer guardianship and custody to him. However, because MGF is the current caregiver, albeit through placement by DCF, and mother has moved to have guardianship transferred to MGF, and because the court must determine which course of action, i.e. transfer of guardianship to MGF or to father, is in Nevaeh's best interest, the court heard evidence relating to this issue from all sides, and then heard from the GAL.
Because father has filed a motion to revoke commitment, C.G.S. § 46b-129(m) applies. Stacy G. (supra) notes the applicable test for the court to follow, which Cameron C. embraces. "[A] natural parent, whose child has been committed to the custody of a third party, is entitled to a hearing to demonstrate that no cause for commitment still exists . . . If the party challenging the commitment meets that initial burden, the commitment to the third party may then be modified if such change is in the best interest of the child . . . The burden falls on the persons vested with guardianship to prove that it would not be in the best interest of the child to be returned to his or her natural parents." In Re Cameron C., supra at page 752. "Under the In re Stacy G. framework, after the natural parent establishes that the cause for commitment no longer exists, the guardian is saddled with the burden of establishing that placement with the natural parent is not in the child's best interest. The natural parent, therefore, has the benefit of a presumption that revocation of commitment is in the child's best interest. In re Stacy G., supra, 94 Conn.App. at 353 n. 4, 892 A.2d 1034. As our Supreme Court has stated, `parents are entitled to the presumption, absent a continuing cause for commitment, that revocation will be in the child's best interest unless the [guardian] can prove otherwise.'" In re Cameron C., supra at page 755.
In this case, the actual guardian, DCF, favors the transfer of custody and guardianship to father. There is no showing that such an action would not be in Nevaeh's best interest. Although the guardian ad litem and the child, through counsel, aver that the child wishes to stay with Wayne, this alone is not enough to establish that such is in her best interest. In response to a question from father's attorney to the GAL as to whether, should the child have said that she wanted to go to live with father, would the GAL have then stated that it was in the child's best interest, the GAL answered that "if the child said it in an appropriate way and with the appropriate emotion attached to it, I [the GAL] would have been more likely to say it was in the child's best interest, despite the long distance between Connecticut and Florida and the smaller portion of time that she has been involved with her father's life than her mother's family." This child just turned seven years old and is repeating the first grade.
FTR, 8-11-08 @12:53:38, Testimony of GAL. [FTR (For The Record) is the recording facility of the court reporter which digitally records the testimony of a witness while noting the time of the utterance by hour, minute and second during that day's trial and which can be replayed by the court in chambers at any time.]
FTR, 8-11-08 @11:44:20. Testimony of Wayne P.
The court finds that it is in Nevaeh's best interest to be placed with her father in Florida and that the facts and applicable law support this position. While the court recognizes that there is a bond among Nevaeh, MGF and her half sister, that is not the controlling basis upon which this court might consider her best interest to be otherwise. Father has earned the right to have his child with him. And there is clear evidence that Nevaeh has a bond with father as well.
Order:
Father's motion to revoke commitment is granted, the court having found that the cause for commitment no longer exists. Custody and guardianship of Nevaeh are hereby transferred to Norman C. DCF's motion to review permanency plan is granted, the recommended plan of revocation of commitment with transfer of custody and guardianship to father is approved and the court enters a finding that DCF has made reasonable efforts to effectuate that plan.
Mother's motion for transfer of guardianship to MGF is denied. Mother's objection to DCF's permanency plan is overruled. Father's objection to mother's motion to transfer guardianship to MGF is sustained. These orders are effective as of the date of this memorandum of decision.