In re Zakai F., SC 20234

CourtSupreme Court of Connecticut
Writing for the CourtMcDONALD, J.
Citation336 Conn. 272,255 A.3d 767
Parties IN RE ZAKAI F.
Docket NumberSC 20234
Decision Date22 July 2020

336 Conn. 272
255 A.3d 767

IN RE ZAKAI F.*

SC 20234

Supreme Court of Connecticut.

Argued May 2, 2019
Officially released July 22, 2020***


255 A.3d 769

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

Albert J. Oneto IV, assigned counsel, for the appellee (petitioner).

David B. Rozwaski, assigned counsel, for the minor child.

Joshua Michtom, assistant public defender, filed a brief for the Office of the Chief Public Defender as amicus curiae.

Louise Truax and Leslie I. Jennings-Lax, Southport, filed a brief for the Connecticut Chapter of the American Academy of Matrimonial Lawyers as amicus curiae.

Stacy L. Schleif and Jay E. Siklick filed a brief for the Center for Children's Advocacy, Inc., as amicus curiae.

William Tong, attorney general, Clare Kindall, solicitor general, and Michael Besso, Benjamin Zivyon, Evan O'Roark and Sara Nadim Swallen, assistant attorneys general, filed a brief for the Commissioner of Children and Families as amicus curiae.

Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn, and Ecker, Js.**

McDONALD, J.

255 A.3d 770
336 Conn. 275

In this certified appeal, we must determine whether there is a constitutional presumption that reinstatement of guardianship rights to a parent under General Statutes § 45a-6111 is in the best

336 Conn. 276

interests of the child and, if so, whether a heightened standard of proof is required to rebut that presumption. The respondent mother,2 Kristi F., appeals from the judgment of the Appellate Court, which affirmed the trial court's denial of her motion for reinstatement of guardianship rights with 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 interests of the child and that she is also entitled to a heightened standard of proof.

We conclude that, under § 45a-611, once a parent demonstrates 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 interests of the child. We also conclude that the party opposing reinstatement must rebut this presumption by clear and convincing evidence. In the present case, because it is unclear whether the trial court applied this presumption, and because it did not determine that the petitioner had rebutted that presumption by clear and convincing evidence, we conclude that the trial court improperly denied the respondent's motion for reinstatement of guardianship. Accordingly, we reverse the judgment of the Appellate Court.

The record reveals the following relevant facts and procedural history. Zakai was born in early 2011 and resided with the respondent until approximately July,

336 Conn. 277

2013, when the respondent voluntarily agreed that the petitioner, Nikki F., the respondent's sister and Zakai's maternal aunt, would care for Zakai. The parties agreed that the petitioner would temporarily care for Zakai while the respondent pursued employment opportunities and obtained appropriate housing and a reliable vehicle. The respondent reassumed custody and care of Zakai in late January or early February, 2014. Thereafter, Zakai was physically assaulted by the respondent's live-in boyfriend, Montreal C., while the respondent was at work. Although both Montreal and the respondent were initially criminally charged after the assault, the charges against the respondent were dropped.

Given the respondent's continued work commitments and Zakai's emotional and physical state following Montreal's abuse of Zakai, the respondent agreed that Zakai again would stay temporarily with the petitioner.

255 A.3d 771

Less than one week later, the respondent requested that the petitioner return Zakai to her care. The petitioner did not respond to the respondent's request but, instead, filed a petition for immediate, temporary custody and an application for removal of guardianship in the Probate Court for the district of Derby in February, 2014, alleging, among other things, that Montreal continued to live at the respondent's home despite a restraining order barring him from contact with Zakai. The Probate Court issued an ex parte order granting the petitioner immediate, temporary custody of Zakai but did not rule on the petitioner's motion for removal of guardianship.

In July, 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. [In August], 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

336 Conn. 278

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 [the] 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. [In April], 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 ... 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." (Footnote omitted.) Id., at 756–57, 198 A.3d 135.

In December, 2015, by agreement of the parties, the court modified the visitation schedule to allow a private agency to arrange two weekly visits between the respondent and Zakai. Thereafter, in January, 2016, the court increased the length of Sunday visits from two to four hours. Then, in March, 2016, the trial court granted an ex parte motion to suspend unsupervised visitation.3

336 Conn. 279

A hearing on the respondent's motion to vacate the order of temporary custody and the petitioner's motion to transfer guardianship was scheduled for September 21, 2016. Before the hearing, however, the court approved an agreement resolving all

255 A.3d 772

outstanding issues. By agreement of the parties, 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.

Approximately nine months later, in June, 2017, the respondent filed a 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. ... [After several days of hearings on the motions, 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."4 Id., at 758, 198 A.3d 135.

336 Conn. 280

On February 2, 2018, the guardian ad litem filed a motion to suspend overnight visitation, alleging that the respondent had violated the court's December 12, 2017...

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