In re Zakai F.
| Decision Date | 30 October 2018 |
| Docket Number | AC 41531 |
| Citation | 198 A.3d 135,185 Conn.App. 752 |
| Court | Connecticut Court of Appeals |
| Parties | IN RE ZAKAI F. |
Benjamin M. Wattenmaker, assigned counsel, Hartford, for the appellant (respondent mother).
Albert J. Oneto IV, assigned counsel, for the appellee (petitioner).
David B. Rozwaski, for the minor child.
Louise Truax and Leslie Jennings-Lax, Southport, filed a brief for the American Academy of Matrimonial Lawyers, Connecticut Chapter, as amicus curiae.
DiPentima, C.J., and Alvord and Bear, Js.
The respondent mother, Kristi F., appeals from the judgment of the trial court denying her motion for reinstatement of guardianship of her minor son, Zakai F. The respondent claims that the court violated her fundamental right to the care and custody of Zakai under the United States constitution by denying her motion (1) without a showing that she was unfit, and (2) without a finding by clear and convincing evidence that Zakai would be at a substantial risk of physical or emotional harm if the current guardianship of him by his aunt, the respondent's sister, were terminated. The respondent additionally claims that the court abused its discretion in concluding that her reinstatement as guardian was not in Zakai's best interest. We disagree with the respondent's claims and, accordingly, affirm the judgment of the court.
The record reveals the following facts and procedural history. In approximately July, 2013, the respondent voluntarily agreed to relinquish, and the Probate Court therefore ordered, temporary guardianship of Zakai to the petitioner, Nikki F., who is the respondent's sister and Zakai's maternal aunt. The parties agreed that Zakai would be cared for temporarily by the petitioner while the respondent pursued employment opportunities, secured funds to obtain appropriate housing, and obtained a reliable vehicle. The respondent reassumed guardianship and care of Zakai in late January or early February, 2014. Shortly after returning to the respondent's care, Zakai was physically assaulted and seriously injured by the respondent's live-in boyfriend, Montreal C., while the respondent was at work.1 Both the respondent and Montreal C. were criminally charged after the assault. The charges against the respondent were ultimately dropped, but the charges against Montreal C. continued to be prosecuted.2
Because of the respondent's work commitments and Zakai's emotional and physical state following Montreal C.'s assault,3 the respondent agreed that Zakai again would stay temporarily with the petitioner. 4
Approximately four or five days after Zakai was placed in the petitioner's care, the respondent requested that the petitioner again return Zakai to her care. The petitioner did not respond to the respondent's request, but instead, on February 18, 2014, filed a petition for custody and guardianship in the Probate Court for the district of Derby, which issued an ex parte order vesting her with temporary custody of Zakai.
On July 9, 2014, the respondent filed a motion in the Probate Court for transfer of the case to the Superior Court. On July 16, 2014, the motion was granted and the case was transferred to the family division of the Superior Court in Milford. On August 1, 2014, the respondent filed a motion to vacate the Probate Court order granting the petitioner temporary custody of Zakai. On September 29, 2014, by agreement of the parties, the court ordered that (1) a guardian ad litem be appointed for Zakai; (2) the respondent continue to engage in anger management counseling, therapy, and parenting classes; and (3) the respondent be afforded supervised visitation with Zakai at a location other than the home of the petitioner up to twice a week, subject to the requirements that the length of visitation be determined by the petitioner, visitation occur only at sites acceptable to the petitioner, and only persons acceptable to the petitioner be present during visitation.
In the fall of 2014, the respondent was arrested after an incident in a public park involving the petitioner and a maternal uncle of Zakai, and she was charged with threatening and breach of peace. A criminal protective order was issued barring any contact between the respondent and the petitioner, but reserving for the family division of the Superior Court the issue of the appropriateness of the respondent's continued contact with Zakai.5 On April 6, 2015, the court granted the petitioner's motion to have the case transferred to the juvenile division of the Superior Court in New Haven.
On June 18, 2015, the court, Conway , J. , ordered the Commissioner of Children and Families (commissioner) to conduct a guardianship study. The guardian ad litem moved for a court ordered psychological evaluation of the parties, and that motion was granted on December 29, 2015.
A hearing on the respondent's 2014 motion to vacate the order of temporary custody and her motion to transfer guardianship of Zakai to her was scheduled on September 21 and 22, 2016. On September 21, 2016, however, the court accepted and approved an agreement resolving all outstanding issues. Pursuant to this agreement, the court transferred guardianship of Zakai to the petitioner, ordered unsupervised daytime visits between the respondent and Zakai, and ordered that, until the protective order was resolved or modified, the petitioner would have a third party present in her home while exchanging custody of Zakai with the respondent. The stipulation also required that any further expansions of the visitation schedule, including overnight visits, would be arranged through family therapy.
On June 27, 2017, the respondent filed another motion to reinstate her guardianship rights to Zakai. Subsequently, the court again ordered the commissioner to conduct and complete a guardianship study pursuant to General Statutes § 46b-129 (n). The respondent subsequently filed a motion for overnight visitation on November 3, 2017, which was heard with her motion for reinstatement of guardianship. The hearing on the motions took place on December 5, 11, and 12, 2017. On December 12, 2017, the court elected to hold in abeyance any definitive ruling on the motion to reinstate the respondent's guardianship rights and instead ordered that Zakai immediately commence overnight visits with the respondent. The court further ordered that the respondent exclusively was to care for Zakai during the overnight visits and that there was to be no contact between Zakai and any unrelated male adults.
On February 2, 2018, the guardian ad litem moved that the court suspend overnight visitation, alleging that the respondent had violated the court's December 12, 2017 order by having an unrelated male stay at her home while Zakai was there. On February 15, 2018, the court reconvened the proceedings to hear testimony and receive other evidence regarding the guardian ad litem's motion on behalf of Zakai to suspend overnight visitation and the respondent's June, 2017 motion to reinstate her guardianship rights. The court heard additional testimony from numerous witnesses on February 15, February 28, and March 1, 2018.
On March 1, 2018, the court issued its memorandum of decision denying the respondent's motion for reinstatement of her guardianship rights and granting the guardian ad litem's motion on behalf of Zakai to suspend overnight visitation. The court found that, despite the fact that there had never been a judicial adjudication of neglect or abuse of Zakai, reinstatement of the respondent's guardianship rights pursuant to General Statutes § 45a-611 (b) was not in Zakai's best interest. The court stated that the respondent had demonstrated that as of March 1, 2018, she was capable of adequately providing for Zakai, that they shared a loving parent-child like bond, and that the respondent and Zakai enjoyed quality time together when Zakai felt he was in a safe environment. The court, however, weighed these findings against testimony and evidence regarding Zakai's emotional and physical debilitation before and after overnight visits with the respondent, and his need for permanency. Specifically, the court credited the testimony of Zakai's first grade teacher, Zakai's therapist, and the petitioner rather than that of the respondent.
The court ultimately found that, "[g]iven the totality of the circumstances in [Zakai's] life, the degree of early childhood trauma he has already experienced, the length of time (four years) he has spent in [the petitioner's] care, his [attention deficit hyperactivity disorder
] diagnosis and his behavioral and emotional issues, and the lack of safety and security [he] feels (after three years of working on the [mother-child] bond), to abruptly remove [Zakai] from [the petitioner's] care and home, particularly given his behaviors since December of 2017, would be cruel, inflict devastating loss and pain on Zakai, and likely exacerbate rather than ameliorate [Zakai's] alarming behaviors." The court concluded that, based on a fair preponderance of the evidence, it was not in Zakai's best interest to return to the respondent's care. This appeal followed.
The respondent claims that the court violated her fundamental right to the care and custody of Zakai under the United States constitution by denying her motion for reinstatement of guardianship (1) without a showing that she was unfit, and (2) without a finding by clear and convincing evidence that Zakai would be at a substantial risk of physical or emotional harm if the current guardianship of him by the petitioner were terminated. The respondent argues that, as applied to the respondent, § 45a-611 violates her fundamental liberty interest in the care and custody of her son. The petitioner counters that the respondent's constitutional arguments were not preserved, the respondent's arguments are not reviewable under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317...
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In re Zakai F.
...respect to her minor son, Zakai F., on the basis that reinstatement was not in Zakai's best interests. See In re Zakai F ., 185 Conn. App. 752, 755, 776–77, 198 A.3d 135 (2018). On appeal, the respondent contends that she is entitled to a presumption that reinstatement is in the best intere......
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In re Zakai F.
...of Connecticut.Decided December 19, 2018The petition by the respondent mother for certification to appeal from the Appellate Court, 185 Conn.App. 752, 198 A.3d 135 (2018), is granted, limited to the following issue: "When a parent who has temporarily relinquished custody seeks reinstatement......