In re Isaiah J.

• Decision Date: 10 November 2011
• Court: Connecticut Superior Court
• Parties: In re ISAIAH J. et al.

52 Conn.Supp. 485

72 A.3d 446

In re ISAIAH J. et al.^*

Superior Court of Connecticut,

Judicial District of New London.

Nov. 10, 2011.¹

Susan B. Carr, Waterford, for the maternal grandmother.

Christopher L. Aker, assistant attorney general, for the petitioner.

MICHAEL A. MACK, Judge Trial Referee.

IPROCEDURAL HISTORY

On December 3, 2008, the Commissioner of the Department of Children and Families(hereinafter Petitioner or DCF or Department) filed neglect petitions alleging that the children, Isaiah J., born October 27, 2004, Aniah J. and Keanah J., both born December 1, 2005, and Tatiannah D., born April 18, 2008, being children born to Megan J. and Carlos D. (hereinafter the children unless specifically named), were being denied proper care and attention, physically, educationally, emotionally or morally and the children were being permitted to live under conditions, circumstances or associations injurious to well-being. On December 8, 2008, DCF filed a motion for order of temporary custody (OTC) for the children which was granted and subsequently sustained on December 12, 2008, and temporary custody was awarded to maternal aunt Ashley C. Also, Katherine D., maternal grandmother (hereinafter Katherine or MGM), was cited in as a party, since she had been appointed temporary guardian of the minor children in New London Regional Probate Court on October 16, 2008. The children, however, were living with mother at various locations prior to December 8, 2008. On February 13, 2009, mother filed a motion to transfer guardianship to maternal grandmother and the matter was set down for trial. On March 27, 2009, DCF filed an OTC because maternal aunt could no longer care for the children as she was moving to Georgia and could not take the four children with her. The OTC was granted and the matter was set down for trial on April 9, 2009. At a trial management conference on March 30, 2009, the parties agreed to sustain the OTC and the trial date was marked off. The children went from Ashley C.'s temporary custody into the care of DCF where placement was made with a nonrelative foster care giver and where they have remained to this date. The case was set down for a judicial pretrial on May 14, 2009. and trial dates were set for early June, 2009. On May 22, 2009, mother filed a motion to vacate the OTC, which was subsequently marked off. On June 1, 2009, the first day of the neglect trial, the parties entered an agreement in court. Mother entered a plea of nolo contendere and father stood silent. The children were adjudicated neglected and committed to the care and custody of the Department of Children and Families. On January 19, 2010, DCF filed a motion to review permanency plan calling for termination of parental rights and adoption. The matter was set down for trial in late March. On February 9, 2010, maternal grandmother filed a motion to transfer guardianship to herself pursuant to General Statutes § 46b–129 (j), which is the subject of this memorandum of decision. On May 5, 2010, mother also filed a motion to transfer guardianship to Ashley C, the maternal aunt now in Georgia. On May 13, [52 Conn.Supp. 488]2010, DCF filed the petition for termination of parental rights. A motion by DCF to consolidate the trial on that petition with the trial on the instant motion was denied.

On May 14, 2010, the third day of trial concerning the permanency plan, mother withdrew her objection to that permanency plan; the court approved the permanency plan of termination of parental rights and adoption and found that DCF made reasonable efforts to effectuate the permanency plan. Also on this date, mother's motion for expedited interstate compact for Georgia, filed on May 5, 2010, was granted. At the case status conference on July 6, 2010, trial dates were set to hear both mother's and maternal grandmother's motions for transfer of guardianship. On October 27, 2010, maternal grandmother filed an addendum to her motion to transfer guardianship seeking a dispositional order of a transfer of guardianship with three months of protective supervision. On November 1, 2010, the first day of trial, mothermarked off her motion to transfer to guardianship. Therefore, this memorandum will only address maternal grandmother's motion to transfer guardianship. The children have been in the care of DCF since December 8, 2008. The case was tried to the court on November 1, 4, 29, 2010; January 10, 2011; February 10, 14, 16, 2011; March 25, 2011; April 1, 2011; May 4, 2011; June 15, 20, 22, 2011; and July 28, 2011. Simultaneous briefs were ordered to be filed by the close of business August 19, 2011, with simultaneous reply briefs to be filed by the close of business September 2, 2011. The trial lasted fourteen days. Eighty-two (82) documents were entered as full exhibits. Forty-two (42) more documents remained as exhibits for identification only and were not admitted. The court heard testimony from Garry Monk (All Pointe Care), Marissa Sessa (All Pointe Care), Tammy Bogue (Catholic Charities), Megan J., Sharyn Goode (Catholic Charities), Ashley C., Katherine D., Dr. James Connolly, Ph.D. (recognized expert in forensic psychology), Dr. Lawrence Fenn (qualified expert in Special Education and employment in Special Education), Roxanne Winslow, Brenda Sheremeta (DCF), Dr. Ronald Anderson, Ph.D. (recognized expert in forensic psychology), Natasha Reed (DCF), Janet Billiter (DCF), Bob Wellemeyer, Dr. Jonathan Micaelis, Ph.D. (neuropsychologist, Bureau of Rehabilitation Services), Marek Kukulka, (Catholic Charities), Daniela Gorman (Director of Youth Services, Town of Water-ford), Officer Charles Flynn (New London Police Department), and Jessica Corneau (Department of Rehabilitation Services). Dr. James Connolly was called or recalled to testify a total of three times and Dr. Ronald Anderson was called and recalled two times. On September 22, 2011, MGM filed a motion to reopen evidence to present newly discovered evidence. On September 29, 2011, argument on the motion was heard and the motion was granted with evidence to be presented on October 5, 2011. On that date, day fifteen of the trial, Gisele Vance of the Norwich Housing Authority testified and the trial was concluded on October 5, 2011.

Service of the motion was found to be properly made and Megan J. (mother), Carlos D. (father) and Katherine D. all appeared through counsel. Both mother and father appeared in court sporadically during the trial but eventually not at all. They were both defaulted on June 22, 2011, and their counsels were excused. There is no proceeding in any other court regarding the custody of the four minor children. This court has jurisdiction.

IIFINDING OF FACTS

The facts found in this decision are found by a fair preponderance of the evidence.

Katherine proceeds under § 46b–129 (j): “Upon finding and adjudging that any child or youth is uncared-for, neglected or abused, 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 legal guardianship in any private or public agency that is permitted by law to care for neglected, uncared-for or abused children or youths or with any other person or persons found to be suitable and worthy of such responsibility by the court, including, but not limited to, any relative of such child or youth by blood or marriage. If the court determines that the commitment should be revoked and the child's or youth's legal guardianship should vest in someone other than the respondent parent, parents or former guardian, or if parental rights are terminated at any time, there shall be a rebuttable presumption that an award of legal guardianship upon revocation to, or adoption upon termination of parental rights by, any relative who is licensed as a foster parent for such child or youth, or who is, pursuant to an order of the court, the temporary custodian of the child or youth at the time of the revocation or termination, shall be in the best interests of the child or youth and that such relative is a suitable and worthy person to assume legal guardianship upon revocation or to adopt such child or youth upon termination of parental rights.

The presumption may be rebutted by a preponderance of the evidence that an award of legal guardianship to, or an adoption by, such relative would not be in the child's or youth's best interests and such relative is not a suitable and worthy person....” ² (Emphasis added.)

It is noted that there has been an adjudication of neglect, the children are committed to the commissioner of DCF, a permanency plan of termination of parental rights and adoption has been approved (after three days of trial when mother withdrew her objection to the plan), the children are currently placed together with nonrelatives in a preadoptive (legal risk) licensed foster home where they have been for two years and eleven months, and no licensed relative foster caregivers are available. The moving party (MGM) is a blood relative who is not licensed as a foster parent for the children, nor is she a court-ordered temporary guardian of the children. The statutory presumptions in subsection (j) are not applicable to this case.

Katherine once held a foster care license from the State of Connecticut from March 31, 1987, to September 21, 1994. DCF took licensing action against her due to concerns about abuse and neglect of foster children in her care on two separate occasions. MGM relinquished her license prior to a revocation hearing decision. DCF did not close her license file in good standing.³ This, together with issues of her seriously deficient judgment at times, concerns about her inadequate income and finances to be able to afford an unsubsidized guardianship, concerns with the fact that...