Garrett's Appeal From Probate

• Decision Date: 08 September 1994
• Docket Number: Nos. CV93-0308808,CV93-0308807S,s. CV93-0308808
• Court: Connecticut Superior Court
• Parties: Johnnie GARRETT'S APPEAL FROM PROBATE.

Page 1000

677 A.2d 1000

44 Conn.Supp. 169

Johnnie GARRETT'S APPEAL FROM PROBATE.

Nos. CV93-0308808S, CV93-0308807S.

Superior Court of Connecticut Judicial District of Fairfield.

Sept. 8, 1994.

Meyers, Breiner & Neufeld, Bridgeport, for plaintiff.

Rebecca L. Johnson, Bridgeport, for defendant.

Edward L. Piquette, Westport, for minor children.

LEVIN, Judge.

On January 28, 1993, at twenty-two years of age, Carmen Martinez Garrett died of breast cancer, leaving a husband (the defendant), and two young daughters, Sheila, then four years of age and Karmen, then two years of age. The defendant is the father of these children. On April 8, 1993, the maternal aunt of the children, Gloria Castillo (the plaintiff), filed petitions with the Probate Court seeking the removal of the defendant as guardian of the children and requesting that she be appointed guardian in his stead. After hearings, the Probate Court granted the petitions. The defendant appealed to this court.

Because a record was not made of the proceedings in the Probate Court, the appeal to this court "is not so much an 'appeal' as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court's jurisdictional limitations." Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991); see General Statutes § 45a-186. ¹ In a trial de novo, this "court exercises the right to make an independent ... determination of the issue involved, without regard to the result reached by the Probate Court. Prince v. Sheffield, 158 Conn. 286, 259 A.2d 621 (1969)." Bristol v. Brundage, 24 Conn.App. 402, 407, 589 A.2d 1 (1991).

The present case involves the removal of a parent as guardian of his children. " 'Guardian' means one who has the authority and obligations of 'guardianship'...." General Statutes § 45a-604(6). For purposes of chapter 802h of the General Statutes, the statutory scheme implicated in these proceedings, " '[g]uardianship' means guardianship of the person of a minor, and includes: (A) The obligation of care and control; and (B) the authority to make major decisions affecting the minor's welfare, including, but not limited to, consent determinations regarding marriage, enlistment in the armed forces and major medical, psychiatric or surgical treatment...." General Statutes § 45a-604(5). "The father and mother of every minor child are joint guardians of the person of the minor.... If either father or mother dies ... the other parent of the minor child shall become the sole guardian of the person of the minor." General Statutes § 45a-606. The court may remove a parent as guardian only if it finds by clear and convincing evidence that one or more of the grounds enumerated in General Statutes § 45a-610 ² have been proven by clear and convincing evidence. ³ The plaintiff's petition alleged the existence of two of these grounds, § 45a-610(2) and (3).

An appeal from an order of the Probate Court removing a parent as guardian "carrie[s] the subject matter embraced in it to the Superior Court, sitting as a Probate Court, for a trial de novo.... The primary jurisdiction over the removal of the [defendant] as a guardian ... rest[s] with the Probate Court.... While the Superior Court could, on appeal, review the order of the Probate Court, it [can] not exercise any greater powers than the Probate Court." (Citations omitted.) Stevens' Appeal, 157 Conn. 576, 581, 255 A.2d 632 (1969).

In a de novo appeal from the Probate Court, "the Superior Court may not consider events transpiring after the Probate Court hearing; Satti v. Rago, 186 Conn. 360, 369, 441 A.2d 615 (1982); [although] it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered." Gardner v. Balboni, supra, 218 Conn. at 225, 588 A.2d 634. ⁴ The evidence thus presented to this court supports the following findings. Carmen Martinez and the defendant were high school students in Bridgeport, when they began dating. Carmen was one year ahead of the defendant. After Carmen's graduation from high school, she entered college in New York. She and the defendant continued to see each other. In her first year of college, Carmen became pregnant by the defendant. She dropped out of college for financial reasons, and the two were married on May 17, 1988. On September 11, 1988, Sheila Krystle Garrett was born.

In early 1989, the Garretts moved to Detroit, Michigan, where the defendant's family resided. The Garretts lived with the defendant's mother. Both husband and wife obtained employment in Detroit, the defendant as a self-employed home improvement contractor for which he has a Michigan journeyman's license. The couple purchased a blighted house for the amount of the outstanding taxes and began to refurbish it. In 1989 Carmen noticed a lump in her right breast. She sought to have the condition diagnosed at the Park Medical Center in Detroit. The condition was diagnosed as a benign mastitis and cystic change.

In late 1989 or early 1990, Carmen became pregnant with her second child. During that pregnancy it was discovered that her right breast was cancerous. Carmen's mother and certain other family members traveled from Bridgeport to Detroit to be with her at this time. On August 27, 1990, Carmen underwent a mastectomy of her right breast. The following day she gave birth to Karmen Milagros Garrett.

Soon after the birth of her second child Carmen returned to Bridgeport with her mother and daughters so that she could obtain medical care at a hospital in New York City. The defendant remained in Detroit. Sometime after returning to Connecticut with her children, Carmen rented an apartment and obtained employment as a bank teller. In March or April of 1991, she underwent a bone marrow transplant operation. Between the time that Carmen returned to Connecticut and the time of her death, a period of over two years, the defendant would visit her and the children from time to time. On these visits, the defendant would sometimes stay with his wife but would often stay at hotels. Sometimes he would bring toys for the children. He purchased a television and video cassette recorder for his wife. He gave her little or no money, however, during the entire time she resided in Connecticut. Carmen and the children were without plates, towels and sheets. There was little food in the apartment and no washing machine. On at least one occasion, Carmen's fellow employees at the bank purchased groceries for her. Her sister purchased a washing machine for her. In 1992, after the defendant refused to pay her support, she was required to apply for and did receive state welfare benefits. Eventually, a petition was brought on her behalf for support of the children pursuant to the Uniform Reciprocal Enforcement of Support Act, General Statutes § 46b-180 et seq. This resulted in an order of support being entered against the defendant by the circuit court of the state of Michigan on January 11, 1993.

In February, 1991, Carmen brought suit in Michigan against the Michigan Health Care Corporation and Park Medical Centers for the negligent misdiagnosis of the lump in her right breast in 1989. On May 7, 1992, that lawsuit was settled in consideration of the defendants paying $130,000 to Carmen and $105,000 to each of her daughters. The settlement agreement also provided for substantial monthly payments to the children for seventeen years.

Toward the end of 1992, Carmen's health again began to deteriorate. She reentered the hospital in New York City where the defendant visited her and the children. During her hospitalizations, the children were cared for by Carmen's mother or by her sisters. On January 28, 1993, she died. The defendant was present for her funeral but left immediately thereafter, without his children, explaining that he was emotionally overwrought. In March, 1993, the defendant took the children back to Detroit for six weeks. Shortly after he returned the children, the plaintiff filed these petitions seeking the removal of the defendant as guardian.

The first ground of the plaintiff's petition is that the minor children have been abandoned by the defendant father "in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility for the minor's welfare." General Statutes § 45a-610(2). "The statutory definition differs from the common law concept of abandonment wherein an intent to abandon totally and permanently must be proved." In re Shannon S., 41 Conn.Sup. 145, 151, 562 A.2d 79 (1989), affirmed and adopted, 19 Conn.App. 20, 560 A.2d 993 (1989) (construing General Statutes [Rev.1987] § 17-43a, now codified as § 17a-112); compare Glotzer v. Keyes, 125 Conn. 227, 233, 5 A.2d 1 (1939) (at common law "[t]o constitute abandonment there must be an intention to abandon or relinquish accompanied by some act or omission to act by which such intention is manifested"). "Where the legislature has specifically defined an operative term used within a statute, [courts] are bound to accept that definition ... unless to do so would create an irrational result that could not have been intended by the legislature." (Citation omitted.) Weinberg v. ARA Vending Co., 223 Conn. 336, 349, 612 A.2d 1203 (1992).

General Statutes § 45a-610 has not been subjected to judicial scrutiny according to officially reported case law. The phrase "failed to maintain a reasonable degree of interest, concern or responsibility for the minor's welfare" is, however, substantially similar to provisions in General Statutes § 45a-717 and General Statutes § 17a-112, pertaining to the termination of parental rights. ⁵ Because §§ 17a-112 and 45a-717, as well as § 45a-610, all deal with judicial interference with parental rights, the court may look to the former for guidance in the construction of the latter since the legislature is presumed to have created a consistent body of law. State v. Giorgio, 2 Conn.App. 204, 209, 477 A.2d...