Opinion
No. H12-CP07-012714-B
November 4, 2008
MEMORANDUM OF DECISION
On February 28, 2008, this court rendered its decision on the termination of parental rights petition ("TPR petition") filed by the commissioner of the department of children and families ("DCF") against the biological parents of Marcus S. ("Marcus"). In re Marcus S., 2008 Ct.Sup. 3329, No. H12-CP07-012714-B, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 29, 2008). This court terminated the parental rights of the mother but not of the father. Id. The court stated the following:
Marcus is hereby committed to the care, custody and guardianship of DCF. It is in Marcus' best interest to remain in his current placement [with the paternal grandparents]. It is not in Marcus' best interest at this time to be returned to the father (the father through counsel stated during the trial that he wanted Marcus to stay with his parents). On or before March 20, 2008, DCF shall prepare specific steps to be reviewed by and discussed with the father. DCF shall be responsible for obtaining court approval of a set of specific steps.
2008 Ct.Sup. at 3448. No appeal was taken by any party.
On April 4, 2008, the father signed and on April 25, 2008, the court (Keller, J.) ordered such amended final specific steps. (Exhibit E.)
On April 30, 2008, DCF filed a motion to review permanency plan, revoke commitment and transfer guardianship to the paternal grandparents who it alleged were suitable and worthy caretakers of Marcus. See General Statutes § 46b-129(j). It alleged that a cause for commitment no longer existed and revocation of the commitment was in the best interests of Marcus. See General Statutes § 46b-129(m). DCF also sought a finding that it had made reasonable efforts to achieve the identified permanency plan. See General Statutes § 46b-129(k)(3).
General Statutes § 46b-129(j) provides in part:
Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court, or the court may vest such child's or youth's care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility by the court . . .
General Statutes § 46b-129(m) provides:
The commissioner, a parent or the child's attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commitment of such child or youth. No such motion shall be filed more often than once every six months.
General Statutes § 46b-129(k)(3) provides:
At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall review the status of the child, the progress being made to implement the permanency plan, determine a timetable for attaining the permanency plan, determine the services to be provided to the parent if the court approves a permanency plan of reunification and the timetable for such services, and determine whether the commissioner has made reasonable efforts to achieve the permanency plan. The court may revoke commitment if a cause for commitment no longer exists and it is in the best interests of the child or youth.
DCF also alleged that it did not have to continue to make reasonable efforts to provide services to the father because the proposed permanency plan did not have a goal of reunification with the father. See General Statutes § 17a-111b(a).
General Statutes § 17a-111b(a) provides:
The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (j) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129.
On May 30, 2008, the father filed his motion to revoke commitment in which he alleged that no cause for commitment continued to exist and it was in the best interest of Marcus that the commitment be revoked. In such motion the father did not ask that guardianship of Marcus be transferred from DCF to him (or to the paternal grandparents). However, such father also filed an objection to the proposed permanency plan of transfer of guardianship to the paternal grandparents in which he sought a modification of such plan to "one of reunification with father."
The attorney for Marcus also filed an objection to the permanency plan insofar as it sought to transfer guardianship of Marcus from DCF.
On October 20, 2008, the father filed a motion for contempt, a motion in limine and a motion for judicial notice. The essence of the motion for contempt was that DCF, in violation of the specific steps, had not referred the father "to any services whatsoever."
On November 3, 2008, except for the motion for judicial notice which was not mentioned by the father, the foregoing motions and objections were considered or heard by the court. DCF appeared through its counsel and the social worker who has been assigned to the family since March 2007. The father appeared and he was represented by counsel. The attorney for Marcus appeared. All of such parties who were present participated in the contested hearing.
Without objection, the motion in limine was marked off without prejudice.
DCF presented as witnesses such social worker and the paternal grandmother. DCF also offered four documents that were admitted as full exhibits. The father presented as a witness the former pre-school teacher of Marcus who had testified at the TPR trial, but whose contact with Marcus had ended before such trial, and seven full exhibits.
As set forth In re Stephen M., 109 Conn.App. 644, 664-65 (2008), this court must accept the trial court findings made in prior proceedings:
. . . On the basis of those same constitutional rights and public policy reasons, a trial court may not, in a subsequent proceeding, disregard and permit relitigation of, a factual or legal determination made or an issue decided in a prior proceeding. Such reconsideration is fundamentally inconsistent with the relevant statutory scheme and is unfair to the petitioner, who represents the state's parens patriae interest, as well as unfair to the respondent parents and the children . . .
Thus, such witness could not be presented as a witness with respect the pending post-trial matters to collaterally attack or to contradict this court's findings in In re Marcus S., supra. Also, such witness had contact with Marcus through approximately January 30, 2007, approximately twenty-one months ago, when Marcus was in the custody of the father and the mother during different parts of the week, when the father was living with a woman who is the mother of his younger child and who when the father worked provided care to Marcus and such younger half sibling. As of February 2008, and currently, the father resides alone.
The burden of proof with respect to a motion to revoke commitment is set forth in Practice Book § 35a-14. At the hearing, however, all parties agreed that the commitment of Marcus to DCF should be revoked. What remains at issue is to whom care, custody and guardianship should be transferred, e.g., the father or the paternal grandparents. The standard to be applied in the determination of this custodial issue is the best interest of Marcus, see In re Karl F., 110 Conn.App. 22, 26 (2008).
Practice Book § 35a-14 provides in part:
(a) . . . Nothing in this section shall preclude any party from filing a motion for revocation of commitment separate from a motion for review of permanency plan and to maintain or revoke the commitment subject to subsection (c) of this rule.
. . .
(c) Whether to maintain or revoke the commitment is a dispositional question, based on the prior adjudication, and the judicial authority shall determine whether it is in the best interest of the child to maintain or revoke upon a fair preponderance of the evidence. The party seeking to maintain the commitment has the burden of proof that it is in the best interest of the child to maintain the commitment. The party seeking revocation of commitment has the burden of proof that no cause for commitment exists. If the burden is met, the party opposing the revocation has the burden of proof that revocation would not be in the best interest of the child. If a motion for revocation is denied, a new motion shall not be filed by the movant until at least six months has elapsed from the date of the filing of the prior motion unless waived by the judicial authority.
(d) The commissioner of the department of children and families shall propose a permanency plan that conforms to the statutory requirements and shall provide a social study to support said plan, including information indicating what steps the commissioner has taken to implement it. At the hearing on the motion for review of permanency plan, the judicial authority shall determine whether efforts to reunify the child with the parent have been made, whether such efforts are still appropriate, and whether the commissioner has made reasonable efforts to achieve the [cont.]permanency plan for the child. The judicial authority shall also determine whether the proposed goal of the permanency plan is in the best interest of the child by a fair preponderance of the evidence, taking into consideration the child's need for permanency. The child's health and safety shall be of paramount concern in formulating such plan. If a permanency plan is not approved by the judicial authority, it shall order the filing of a revised plan and set a hearing to review said revised plan within sixty days.
. . .
(g) A determination that further efforts to reunify the child with the parent are not appropriate need not be made at subsequent permanency review hearings if the judicial authority has previously determined that such efforts are not appropriate. A determination as to whether the commissioner of the department of children and families has made reasonable efforts to achieve the permanency plan must be made at each hearing on the motion for review of permanency plan . . .
In In re Karl J., supra, 110 Conn.App. at 26, the Appellate Court set forth such standard as follows:
We begin with the standard of review. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of its environment . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court . . . A mere difference of opinion or judgment cannot justify our intervention. [cont.]Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) In re Patricia C., 93 Conn.App. 25, 32-33, 887 A.2d 929, cert. denied, 277 Conn. 931, 896 A.2d 101 (2006); In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004); see also Practice Book § 35a-16. "[G]reat weight is given to the judgment of the trial court because of [the court's] opportunity to observe the parties and the evidence . . . [Appellate courts] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the Juvenile Court when they are based on reliable evidence." (Citation omitted; internal quotation marks omitted.) In re Jeisean M., 270 Conn. 382, 397-98, 852 A.2d 643 (2004).
Marcus, who is five years old, has resided with his paternal grandparents since March 2007, and they have provided for his needs since that time, including but not limited to his educational and medical needs, and they are ready, willing and able to do so in the future. Marcus is very attached to and is very bonded to each paternal grandparent. He has thrived in their care. Marcus is happy to live with his grandparents and he has stated to the current worker that the grandparents' home is his home.
The father, who at the TPR trial suggested that Marcus remain in the care of the paternal grandparents, regularly has visited with Marcus, and there are no issues with respect to Marcus' health and safety when he is with the father. The father and Marcus have a loving, bonded relationship. The father, who currently lives by himself, has had steady employment since this case began. He currently has two jobs, attends evening classes and is on call at times on short notice for one of the jobs. He has a good relationship with the paternal grandparents and he has access to them and to Marcus as his schedule permits. He frequently visits them with his younger son who resides with such son's biological mother. Marcus knows that the paternal grandparents are his grandparents and the father is his biological father.
Since the February 28, 2008, TPR decision, DCF has worked with and provided services to the father both to the extent necessary to do so in light of the father's needs and to the extent that the father was willing to have contact with and to work with DCF in connection with services. On several occasions the father has told the current worker that he is too busy for services. Despite the worker's questions to the father about his plans for the care of Marcus should he receive custody of him, the father, however, has not articulated to the worker any such plans. The DCF worker stated that the father has been hard to contact to discuss case issues. DCF recently asked the father to engage in family therapy with Marcus, and the father said that he would do so if his schedule permitted.
Based on the testimony and the other evidence admitted at the hearing, and by a fair preponderance of the evidence, the court hereby approves the DCF permanency plan of revocation of commitment and the transfer of guardianship to the paternal grandparents. By clear and convincing evidence, the court finds that DCF has made reasonable efforts to achieve the identified permanency plan. The objections by the father and by the child to such plan are overruled. The father's motion for contempt is denied.
The court denies the father's motion insofar as it seeks transfer of guardianship of Marcus to the father. The father chose not to testify in support of his motion, and did not offer other evidence to establish by a preponderance of the evidence that it would be in the best interest of Marcus at this time to be in his care and custody.
The court did not draw any adverse inference as permitted in the Supreme Court's decision in In re Samantha C., 268 Conn. 614, 847 A.2d 883 (2004), from the father's voluntary decision with the advice of his counsel not to testify.
Based on the testimony and the other evidence admitted at the hearing, and by a fair preponderance of the evidence, the court finds that it is in the best interest of Marcus to continue in the care and custody of the paternal grandparents, who are found by the court to be suitable and worthy of such responsibility, and the court hereby revokes the commitment of the care, custody and guardianship of Marcus to DCF and transfers the care, custody and guardianship of Marcus to the paternal grandparents who at this time will best foster Marcus' interest in his sustained growth, development, well-being, and in the continuity and stability of his environment.
The court's orders are effective on Monday, December 15, 2008, unless otherwise ordered by the court.