McGaffin v. Roberts

Decision Date19 June 1984
Citation193 Conn. 393,479 A.2d 176
CourtConnecticut Supreme Court
PartiesWilliam McGAFFIN v. Cathy ROBERTS.

Daniel V. Presnick, New Haven, for appellant (plaintiff).

Peter M. Sipples, Clinton, with whom, on the brief, were David J. Peska and Lynda B. Munro, Clinton, for appellee (defendant).


ARTHUR H. HEALEY, Associate Justice.

This appeal involves a habeas corpus action instituted by the plaintiff, William McGaffin (father), to obtain custody of Cathy McGaffin (child), his four year old daughter, after the death of Lena McGaffin (mother), the child's mother who was the plaintiff's divorced wife. The habeas corpus was brought against the defendant, Cathy Roberts, the maternal grandmother (grandmother), who contested the action and requested that she be awarded custody. The trial court, after a full hearing, awarded custody to the grandmother with rights of visitation in the father as specified in its memorandum of decision. This appeal followed.

Among the facts found by the trial court are the following: The child was born on January 7, 1978. Her father and mother were separated in 1980 and divorced in 1981. At the time of the divorce, both parents agreed that the mother be awarded custody of the child. In awarding custody to the mother, the dissolution court also ordered that the father pay $25 per week for the support of the child. The father remarried shortly after the divorce.

The mother died suddenly on December 9, 1982, in Clinton where she and the child had made their own living arrangement since sometime in 1981. Prior to that, the father, mother and child had come up from Virginia in 1978 and moved into the grandmother's home. The mother and child remained at that home after the mother's separation from the father until sometime in 1981 when they moved down the street from the grandmother. Although they then lived in separate quarters, the child spent a substantial portion of each week with the grandmother.

At the time of the mother's death, a custody action, instituted by the father, was pending in the New Haven judicial district because the mother had withheld visitation after she had found bruises on the child following a weekend visit with the father. Temporary visitation had been reinstated by that court during the pendency of that custody action during which the father picked up and dropped off the child at the grandmother's home. Prior to the mother's death, she and her child had been receiving state welfare assistance and the state was investigating the father for delinquent support payments.

The trial court also found that the father exercised visitation rights "on a fairly regular basis" after his divorce and remarriage although visitation "[had] ... been problematic for the child." It found that on at least two occasions the child returned from visitation so ill that she had to be hospitalized, once in March, 1981, for one week and again in June, 1981, for two weeks. 1 On one of these occasions, the father claimed that the child had a temperature when he picked her up and that the next day he took her to his present wife's physician after she had "bad vomiting fits." The father maintained that although the physician told him that the child should be treated, the physician would not do so because the father was not the custodial parent and did not have the child's welfare medical card. The father did not contact the mother but, instead, took the child home and gave her aspirin. On the following day, a Sunday, he took the child to the beach place of his present wife's parents where the child again began vomiting and running a high temperature. He thereupon cut his visit short and dropped the child off at her grandmother's at noontime. On the other occasion, the child became ill during visitation. The father did not seek any medical attention but merely dropped the child off at her grandmother's with a high temperature.

The trial court found that on each of these occasions the father "failed to act appropriately in the face of very apparent and serious symptoms." It also noted that the father's present wife testified that there was nothing wrong with the child when she was returned to the grandmother's house. The trial court's memorandum also develops the incident of the bruise marks found on the child's arms by the grandmother after her return on April 18, 1982, from visitation with her father. The father's explanation of the bruise marks was that he had grabbed the child to keep her from falling off a bus from which he, his present wife and the child were alighting. 2 These bruises, which were on both arms, were observed by both a police officer to whom the child was taken and a worker with the department of children and youth services (DCYS) to whom the Clinton police had referred the matter as a suspected child abuse incident. 3 The child told the DCYS worker that her father had inflicted the bruises. Both the Clinton police officer and the DCYS worker described the bruise marks as finger marks in the flesh. The trial court found that the child had been grabbed hard enough to leave handprints on the arms.

The father, in describing his visitation, stated that the child would be nervous when she first arrived, but thereafter she would relax and play with toys he kept for her. On the other hand, the present Mrs. McGaffin said that the child was not nervous on her visits. Both agreed that the child "got along well with them on her visits and that there were no problems with her." At the trial, the grandmother and two maternal aunts described the child "as being very fretful and upset the day before she knows she is to visit her father and as crying before she gets picked up."

Additionally, the trial court pointed out that an "in chambers" session was held at the request of the attorneys who were allowed to question the child directly. 4 The trial court found that she was "a poised articulate little girl" who "understood what she was being asked and was not hesitant at all in giving her responses." The court also found that "[h]er responses were constantly negative as to her father and his wife and positive as to her grandmother." When asked why she said she felt "not good" about her father, she replied, "he hurt me" and when asked how, she said that he grabbed her by the arms. On the other hand, when asked how she felt about her grandmother, she answered, "good." In sum, the court opined that the child "makes it very clear that she wants to live with the grandmother." In this connection, the trial court pointed out that "[s]he looked well cared for, she sounded well cared for [and] she acted well cared for" and that "[s]he wants to stay where she has been for most of her young life, with her grandmother."

The position of the father at the habeas hearing was that as the sole surviving parent of the child his right to custody could not be challenged by the grandmother, who, as a stranger, lacks standing. The trial court states that while it is not disputed that the plaintiff is the father, that the mother died on December 9, 1982, and that the father's parental rights have not been terminated, what is in dispute is the father's claim "that he is a fit person to have custody and control of the child." After examining the evidence, including that given by the child as well as its own observations, 5 the trial court decided that it "must weigh this against the wishes of her father who comes across as a parent asserting his rights but as having failed to demonstrate that he could be a responsible, reliable caretaker." Here the court points out that it has "noted particularly the discrepancies in the accounts given by the plaintiff and his wife as to how they perceived the child's health needs, how she got the bruise marks [and] how she interacted with them and responded to them." The father's delinquency in the support payments was noted as well as the attribution to his present wife that she did not want to take care of children including his child. The trial court concluded that it could not justify removing the child from the grandmother and therefore granted custody to the grandmother.

In appealing from the judgment granting custody, the father has set out and briefed twenty-two claims of error. 6 After careful scrutiny of all of the father's claims of error, justice will be served by the consideration of certain claims of error. 7 7] They are that the trial court erred in: (1) holding that the grandmother had standing to "resist" the father's habeas corpus petition; (2) its interpretation of Baram v. Schwartz, 151 Conn. 315, 197 A.2d 334 (1964); (3) failing to give the father the benefit of the presumption of parental fitness; (4) its interpretation of General Statutes § 45-43; 8 (5) deciding the case solely on the basis of "the best interest of the child" without regard to the father's constitutionally protected parental rights; and (6) its legal conclusion based on its finding of facts as set out in its memorandum.

There can be no lingering doubts that the family unit, including the rights of parent and child, is accorded constitutional protection. "The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, [262 U.S. 390, 399, 43 S.Ct. 625, [626,] 67 L.Ed. 1042 (1923)], the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, [316 U.S. 535, 541, 62 S.Ct. 1110, [1113,] 86 L.Ed. 1655 (1942)] ...." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); see Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). As it noted recently, the United States Supreme Court...

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