In re Paulo T.

• Docket Number: AC 45111
• Decision Date: 18 July 2022
• Parties: IN RE PAULO T.
• Court: Connecticut Court of Appeals

213 Conn.App. 858

279 A.3d 766

IN RE PAULO T.^*

AC 45111

Appellate Court of Connecticut.

Argued March 10, 2022

Officially released July 18, 2022^**

Benjamin M. Wattenmaker, Hartford, assigned counsel, for the appellant (respondent father).

Robert C. Koetsch, Danbury, assigned counsel, for the appellee (petitioner mother).

Bright, C. J., and Moll and Alexander, Js.

ALEXANDER, J.

The respondent father, Horace W., appeals from the granting of the motion for reinstatement of guardianship rights filed by the petitioner mother, Mae T., with respect to their minor child, Paulo T. On appeal, the respondent claims that the court (1) improperly applied a presumption that reinstatement of the petitioner's guardianship rights was in the best interests of Paulo, (2) erroneously found that the factors that had led to the removal of the petitioner's guardianship rights had been resolved satisfactorily, (3) erroneously found that reinstatement of the petitioner's guardianship rights was in the best interests of Paulo, and (4) improperly dismissed the respondent's motion to open the judgment. We disagree with these claims and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On February 17, 2019, the Department of Children and Families (department) received a referral alleging that then ten year old Paulo was physically neglected as a result of the petitioner's homelessness and abuse of alcohol. The Commissioner of Children and Families (commissioner) subsequently filed a petition for an order of temporary custody and a petition alleging that Paulo had been neglected and uncared for. During the department's investigation, the petitioner admitted that she had been evicted from her apartment, Paulo had not been attending school, and she had consumed alcohol for coping purposes in the presence of Paulo. The respondent indicated that he lived in a senior citizen building and could not be a resource for Paulo. On February 26, 2019, the court, Randolph, J. , issued an order vesting temporary custody of Paulo in the respondent's adult daughter, Tachelle C.¹

On June 10, 2019, the petitioner pleaded nolo contendere to the allegation that Paulo had been uncared for due to her homelessness.² The court issued orders vesting primary custody and sole guardianship of Paulo in the respondent.³ Additionally, the court ordered the petitioner to comply with certain specific steps, including participating in substance abuse treatment and obtaining adequate housing and legal income.

On November 20, 2020, the petitioner filed a motion for reinstatement of her guardianship rights⁴ with the Superior Court for juvenile matters.⁵ The petitioner also alleged that Paulo had been physically abused by the respondent. The petitioner sought full legal and physical custody. On February 22, 2021, the department completed a court study for the reinstatement of guardianship.⁶ It recommended that (1) the court grant the petitioner's motion to reinstate her guardianship rights, (2) the court grant the respondent regular contact and visitation, and (3) the parties participate in counseling to address their communication and interactions with respect to Paulo.

The court, Maronich, J. , conducted a hearing on September 7 and 8, 2021. After considering the testimony and evidence, and hearing the arguments of counsel, the court issued an oral decision. At the outset, the court noted that Paulo had been removed from the petitioner's care due to "the immediate problem of homelessness, secondary to a more serious problem of alcohol abuse ...." The court then discussed the procedural context of the petitioner's motion: "The instant petition for restoration of parental guardianship was filed by [the petitioner] on November 20, 2020. In order to prevail on this petition, a parent must demonstrate that the factors that resulted in the removal of the parent as guardian have been resolved satisfactorily. The parent is entitled to a presumption that reinstatement of guardianship rights is in the best interest of the child."

The court next summarized the evidence and made findings with respect to whether the petitioner had resolved the reasons for her removal as a guardian. Specifically, the court noted that the petitioner had entered an intensive outpatient therapy program in March, 2019, and transitioned to a "sober house" in April, 2019, where she remained until September 5, 2020. The court stated that her record at both programs was exemplary and that the house manager of the sober house described the petitioner as "a model resident." The court also indicated that the petitioner continued to attend Alcoholics Anonymous (AA) meetings and had maintained her sobriety since January, 2020. Additionally, the petitioner obtained full-time employment, had secure housing, and was in a stable relationship. In conclusion, the court stated: "This court is under no illusions about [the petitioner's] past history and long struggle with alcohol. The court, however, is satisfied that she has demonstrated a reasonable period of sobriety and is able to meet the needs of ... Paulo. The court finds that the petitioner has met her burden of proof, that the causes for removal of Paulo from her care have been satisfactorily resolved."

The court then addressed the best interests of Paulo and considered the relevant factors set forth in General Statutes § 46b-56.⁷ It found that both parents were prepared to meet Paulo's needs. The court noted that Paulo consistently had expressed a desire to live with the petitioner and that for the majority of his life he had been in the care of the petitioner. In its findings, the court noted that there had been extended periods of time with little contact between Paulo and the respondent. The court acknowledged, however, that during the past two years, the respondent had "stepped up to the plate during very difficult times and provided [Paulo] a home." The court indicated that, given the petitioner's sobriety, long-term relationship, stable housing situation, and employment, she would be able to meet Paulo's needs and provide him with stability. The court found that Paulo would be able to transfer to a school in Milford, where the petitioner lived. Finally, the court determined that Paulo would be able to transition back to the petitioner's care and not suffer undue stress in doing so.

"In balance, this court finds that it is in Paulo's best interest for physical custody to be vested in [the petitioner]. In reaching this difficult decision, the court is most persuaded by the length of time in [the petitioner's] care prior to removal, the demonstrated devotion she has shown in overcoming her demons, the recommendation of three separate [department] workers and the guardian ad litem, and finally by Paulo's own expressed wishes. Paulo is far more intelligent and grown up than his [age] would suggest. As a child becomes a teenager and [a] young adult, the court accords a greater weight to his or her wishes.

"The court is also—also knows that each parent here has a vastly different style of parenting. As Paulo enters his teenage years, the court believes that primary physical custody with [the petitioner] would be a better fit. The court would be remiss if it did not acknowledge that [the respondent] has been a good father to his son, Paulo.... For the following reasons, the court will grant this petition, [the petitioner and the respondent] will have joint guardianship of Paulo, primary physical custody will be vested in [the petitioner]."

After delivering its oral decision, the court recessed to provide the parties with the opportunity to come to an agreement with respect to visitation. After resuming the proceeding, the court noted on the record that the parties had been unable to reach an agreement. The court issued orders with respect to the issue of visitation.⁸ At the conclusion of the proceeding, the court stated: "This court will not retain jurisdiction over any visitation issues. Any disputes or necessary modifications will be addressed to the family court."

On September 27, 2021, the respondent filed a motion to open the judgment on the ground that the petitioner had failed to comply with the court's visitation orders. The respondent additionally alleged that he had been prevented from contacting and communicating with Paulo. The respondent also filed a motion for contempt on that same day, in which he alleged that the petitioner had violated the court's orders by preventing him from visiting with Paulo. In her October 4, 2021 objection to the motion to open, the petitioner countered, inter alia, that the respondent's motion constituted an improper attempt to relitigate the matter.

The court held a hearing on the respondent's motions on October 28, 2021. Pursuant to its previous order stating that it would not retain jurisdiction, the court dismissed the respondent's contempt motion. The court also declined to exercise jurisdiction over the respondent's motion to open the judgment. This appeal followed.⁹

Additional facts will be set forth as necessary.

I

The respondent first claims that the court improperly applied a presumption that reinstatement of the petitioner's guardianship rights was in the best interests of Paulo as established by our Supreme Court in In re Zakai F. , 336 Conn. 272, 255 A.3d 767 (2020). Specifically, he argues that the presumption regarding best interests, and the requirement that the party opposing the reinstatement of guardianship must rebut this presumption by clear and convincing evidence, do not apply in cases between two parents and that the court improperly applied this presumption in the present case. Although we agree with the respondent that the presumption set forth in In re Zakai F. , supra, at 288, 255 A.3d 767, does not apply in disputes involving two parents, we nevertheless conclude that the court did not apply this presumption in favor of the...