In re Leo L. ( 2019 )

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IN RE LEO L. ET AL.*
(AC 42478)
Elgo, Moll and Norcott, Js.
Syllabus
The intervenor, the maternal grandfather of the minor children, L and D,
appealed to this court from the judgment of the trial court denying his
motion to transfer to himself and his fiancée the guardianship of the
children, who had been placed with nonrelative foster parents. The trial
court also had terminated the parental rights of the children’s parents.
The intervenor claimed that the trial court abused its discretion and
erroneously determined that the transfer of guardianship would not be
in the children’s best interests. Held that the trial court did not abuse
its discretion in denying the intervenor’s motion to transfer guardianship:
that court, which made findings that were not challenged by the interve-
nor, that the children referred to their foster parents as ‘‘mom’’ and
‘‘dad,’’ were succeeding in school, and were thriving with their foster
family in a stable environment for the first time in their young lives,
did not err in determining that the transfer of guardianship of the children
to the intervenor would not be in the children’s best interests, and
although the trial court acknowledged the existence of evidence that
weighed in favor of the intervenor’s motion, it had the authority to weigh
the evidence elicited in the intervenor’s favor and, on the basis of all
of the evidence before it, determined that transferring guardianship was
not in the children’s best interests, and it was not within the province
of this court to second-guess that reasoned determination; moreover,
the intervenor’s claim that the court failed to acknowledge certain evi-
dence of the foster father’s alleged violence and abuse toward the chil-
dren and the foster parents’ move to Massachusetts with the children
was unavailing, as the trial court explicitly stated that its decision to
deny the intervenor’s motion was made in light of all the facts before
it, and that statement was entitled to deference.
Argued May 13—officially released June 26, 2019**
Procedural History
Petitions by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor children, brought to the Superior
Court in the judicial district of Middlesex, Child Protec-
tion Session, where the court, Woods, J., granted the
maternal grandfather’s motion to intervene; thereafter,
the matter was tried to the court; judgments terminating
the respondents’ parental rights and denying the inter-
venor’s motion to transfer guardianship, from which
the intervenor appealed to this court. Affirmed.
Christopher DeMatteo, for the appellant (intervenor).
Evan O’Roark, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, Clare Kindall, solicitor general, and Benjamin
Zivyon, assistant attorney general, for the appellee
(petitioner).
Opinion
MOLL, J. The intervening grandfather, Eugene L.
(intervenor), appeals from the judgment of the trial
court denying his motion to transfer the guardianship
of his two minor grandchildren, Leo L. and Dakota F.
H., to himself and his fiancée, Crystal H. On appeal, the
intervenor contends that the court erroneously deter-
mined that the transfer of guardianship would not be
in the children’s best interests and, thus, abused its
discretion in denying his motion. We disagree and,
accordingly, affirm the judgment of the trial court.
The following procedural history and facts, as set
forth in the trial court’s memorandum of decision, are
relevant to our disposition of the intervenor’s claim.
Leo L. and Dakota F. H. are the children of Monique
L., and the intervenor is their maternal grandfather. On
August 4, 2016, the children were committed to the care
and custody of the Department of Children and Families
(department) upon being adjudicated neglected.
Shortly thereafter, on August 10, 2016, they were placed
with nonrelative foster parents in whose care they
have remained.
In September, 2017, the department changed its plan
for the children from reunification with their mother
to the termination of parental rights and eventual adop-
tion. On September 27, 2017, after the intervenor had
learned of the department’s intentions, he successfully
moved to intervene in the case. On December 21, 2017,
Monique L. consented to the termination of her parental
rights with respect to the children.1 On January 8, 2018,
pursuant to Practice Book § 35a-12A,2 the intervenor
moved to transfer guardianship of the children to him-
self and Crystal H. Following a four day trial during the
period of February to June, 2018, the trial court issued
a memorandum of decision denying the motion on the
basis that, while the intervenor and his fiancée might be
suitable and worthy guardians, the requested transfer
of guardianship would not be in the children’s best
interests.3
In support of its ruling, the court made the following
relevant factual findings. The children had transitioned
well into their foster home. The current foster parents
are seeking to adopt the children. The children refer
to their foster parents as ‘‘mom’’ and ‘‘dad’’ and have
maintained a close relationship with them. Although
Leo L. initially expressed hesitation about being
adopted, that reluctance was no longer present. Indeed,
both children indicated a desire to be adopted by, or
otherwise to remain with, their foster parents. The court
also found that Leo L. was enjoying school and was
‘‘meeting grade level expectations’’ and that Dakota F.
H. had ‘‘greatly improved her academic skills’’ while in
the care of her foster parents. When concerns arose
regarding the ability of Dakota F. H. to self-regulate,
she engaged in therapy that improved her interactions
with others.
Additionally, the court found that the children had
‘‘grown, matured, and adjusted to their current living
placement’’ and that they had lived with their foster
parents for more than two years. They also had bonded
with their foster sibling. Against these findings, the
court emphasized the stability that the foster family
had provided the children: ‘‘Although other living
arrangements might also provide the children with love,
affection, safety, and guidance, the court notes that the
children’s preadoptive placement provides all of these
things and that disrupting their current placement
would introduce great instability into their lives.’’ Fur-
thermore, the court noted that the intervenor had
declined three prior opportunities to obtain guardian-
ship of the children.4 This appeal followed. Additional
facts will be set forth as necessary.
On appeal, the intervenor generally does not chal-
lenge the factual findings underpinning the court’s
determination that a transfer of guardianship would not
be in the children’s best interests.5 Rather, he maintains
that the court failed to consider certain evidence
adduced at trial that undermined its determination that
placement with the intervenor and Crystal H. would
not be in the children’s best interests. Specifically, the
intervenor points to testimony from both Crystal H. and
a department social worker regarding the foster father’s
alleged anger and use of violence toward the children.
The intervenor also relies on evidence that the foster
parents moved the children to Massachusetts during
the trial, which he claims was ‘‘surprising and deceitful’’
and not in the children’s best interests, particularly in
light of a department policy that proscribes the removal
of foster children from Connecticut without prior
department approval. The intervenor submits that this
evidence requires the conclusion that the court abused
its discretion in denying his motion. We are not per-
suaded.
We begin our analysis with the standard of review
and applicable legal principles. The adjudication of a
motion to transfer guardianship pursuant to General
Statutes § 46b-129 (j) (2)6 requires a two step analysis.
‘‘[T]he court must first determine whether it would be
in the best interest[s] of the child for guardianship to
be transferred from the petitioner to the proposed
guardian. . . . [Second,] [t]he court must then find that
the third party is a suitable and worthy guardian. . . .
This principle is echoed in Practice Book § 35a-12A (d),
which provides that the moving party has the burden
of proof that the proposed guardian is suitable and
worthy and that transfer of guardianship is in the best
interests of the child.’’ (Citation omitted; internal quota-
tion marks omitted.) In re Mindy F., 153 Conn. App.
786, 802, 105 A.3d 351 (2014), cert. denied, 315 Conn.
913, 106 A.3d 307 (2015).
‘‘To determine whether a custodial placement is in
the best interest of the child, the court uses its broad
discretion to choose a place that will foster the child’s
interest in sustained growth, development, well-being,
and in the continuity and stability of its environment.
. . . We have stated that when making the determina-
tion of what is in the best interest of the child, [t]he
authority to exercise the judicial discretion under the
circumstances revealed by the finding is not conferred
upon this court, but upon the trial court, and . . . we
are not privileged to usurp that authority or to substitute
ourselves for the trial court. . . . A mere difference of
opinion or judgment cannot justify our intervention.
Nothing short of a conviction that the action of the trial
court is one which discloses a clear abuse of discretion
can warrant our interference. . . . In determining
whether there has been an abuse of discretion, the
ultimate issue is whether the court could reasonably
conclude as it did. . . . [G]reat weight is given to the
judgment of the trial court because of [the court’s]
opportunity to observe the parties and the evidence.
. . . [Appellate courts] are not in a position to second-
guess the opinions of witnesses, professional or other-
wise, nor the observations and conclusions of the [trial
court] when they are based on reliable evidence.’’ (Inter-
nal quotation marks omitted.) In re Anthony A., 112
Conn. App. 643, 653–54, 963 A.2d 1057 (2009).
We have reviewed the evidence presented to the trial
court that relates to the intervenor’s specific claims
on appeal. By way of summary, the parties submitted
conflicting evidence regarding whether the foster father
had exhibited anger and violence toward the children.
The intervenor presented evidence that the foster father
yelled and swore at the children in March, 2018. He
further proffered testimony from Crystal H. that she
overheard Leo L. describe physical abuse by his foster
father in April and June, 2018. The department offered
evidence of its investigation with respect to these allega-
tions. This evidence included testimony that Leo L. had
admitted to manufacturing the allegation of physical
abuse by his foster father and that, following an inquiry
into the claim, the department ultimately found it to
be unsubstantiated.7 Furthermore, a department social
worker testified that the children appeared comfortable
around, played with, and did not fear their foster father.
With respect to the foster parents’ move from Con-
necticut to Massachusetts, the record reveals that the
foster parents relocated with the children in May, 2018,
without the department’s knowledge and in violation
of a department policy that requires foster parents to
obtain department permission prior to moving foster
children out of state. The record also shows, however,
that, although the foster parents did not inform the
department of the move at the time it occurred, the
department knew in advance that it was the foster par-
ents’ intention to move from Connecticut. For their
contravention of department policy, the department
issued the foster parents a regulatory violation.
This court does not make credibility determinations,
and it is the trial court’s role to weigh the evidence
presented and determine relative credibility when it sits
as a fact finder. See Zilkha v. Zilkha, 167 Conn. App.
480, 495, 144 A.3d 447 (2016). Here, the trial court had
the authority to weigh evidence elicited in the interve-
nor’s favor. See In re Bianca K., 188 Conn. App. 259,
270, 203 A.3d 1280 (2019) (‘‘[I]t is the exclusive province
of the trier of fact to weigh conflicting testimony and
make determinations of credibility, crediting some, all
or none of any given witness’ testimony. . . . Ques-
tions of whether to believe or to disbelieve a competent
witness are beyond our review.’’ [Internal quotation
marks omitted.]). In addition, we have held that ‘‘a trial
court may rely on the relationship between a child and
the child’s foster parents to determine whether a differ-
ent placement would be in the child’s best interest.’’ In
re Athena C., 181 Conn. App. 803, 821, 186 A.3d 1198,
cert. denied, 329 Conn. 911, 186 A.3d 14 (2018). The
court made findings, unchallenged by the intervenor,
that the children referred to their foster parents as
‘‘mom’’ and ‘‘dad,’’ were succeeding in school, and were
thriving with their foster family in a stable environment
for the first time in their young lives. Although we
acknowledge, as the trial court did, the existence of
evidence that weighed in favor of the intervenor’s
motion, the court, on the basis of all of the evidence
before it, decided that transferring guardianship was
not in the children’s best interests. It is not our province
to second-guess that reasoned determination. See id.,
820.
Finally, the intervenor contends that because the
court failed to acknowledge the evidence of the foster
father’s alleged violence and abuse toward the children
and the foster parents’ move to Massachusetts with the
children in its memorandum of decision, it failed to
consider that evidence in conducting the ‘‘best inter-
ests’’ analysis. We do not agree. The court explicitly
stated that its decision to deny the intervenor’s motion
was made ‘‘[i]n light of all the facts before it . . . .’’
That statement is entitled to deference. See id. (‘‘[T]he
[trial] court considered all the evidence before it to
decide whether immediately transferring guardianship
to the grandmother would be in the best interest of the
child. We will not, on appeal, second-guess the court’s
determination that it was not.’’).
In sum, we conclude that the court did not err in
determining that the transfer of guardianship of Leo L.
and Dakota F. H. to the intervenor and Crystal H. would
not be in the children’s best interests. Accordingly, the
court did not abuse its discretion in denying the interve-
nor’s motion to transfer guardianship.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** June 26, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
On February 23, 2018, Leo L.’s father also consented to the termination
of his parental rights by telephone. On July 19, 2018, the putative father of
Dakota F. H. was defaulted for failure to appear.
2
Practice Book § 35a-12A provides: ‘‘(a) Motions to transfer guardianship
are dispositional in nature, based on the prior adjudication.
‘‘(b) In cases in which a motion for transfer of guardianship seeks to vest
guardianship of a child or youth in any relative who is the licensed 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 motion,
the moving party has the burden of proof that the proposed guardian is
suitable and worthy and that transfer of guardianship is in the best interests
of the child. In such cases, there shall be a rebuttable presumption that the
award of legal guardianship to that relative 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. The presumption may be rebutted by a prepon-
derance of the evidence that an award of legal guardianship to such relative
would not be in the child’s or youth’s best interests and such relative is not
a suitable and worthy person.
‘‘(c) In cases in which a motion for transfer of guardianship, if granted,
would require the removal of a child or youth from any relative who is the
licensed 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 motion, the moving party has the initial burden of proof that
an award of legal guardianship to, or an adoption by, such relative would
not be in the child’s or youth’s best interest and that such relative is not a
suitable and worthy person. If this burden is met, the moving party then
has the burden of proof that the movant’s proposed guardian is suitable
and worthy and that transfer of guardianship to that proposed guardian is
in the best interests of the child.
‘‘(d) In all other cases, the moving party has the burden of proof that the
proposed guardian is suitable and worthy and that transfer of guardianship
is in the best interests of the child.’’
3
The court’s memorandum of decision on the intervenor’s motion to
transfer guardianship was issued simultaneously with a memorandum of
decision on the department’s petitions for termination of parental rights.
The latter decision is not at issue in this appeal.
4
The court found that, prior to the birth of Dakota F. H., Monique L. took
Leo L. to South Carolina where he was retrieved by the intervenor because
of Monique L.’s physical neglect of Leo L. Monique L. eventually returned
to Connecticut and regained care of Leo L. In February, 2016, the children
moved in with the intervenor and Crystal H. but were removed after a few
months as a result of Crystal H.’s inability to manage the children alone.
5
The intervenor claims, however, that the court erred in finding that Leo
L. wanted to be adopted by his foster parents. Specifically, the intervenor
asserts that, although Leo L. stated that he wanted to be adopted by his foster
parents, he also stated that he was considering living with the intervenor
and Crystal H., such that he could not choose between them. As the depart-
ment points out, Leo L.’s therapist testified at trial that, although Leo L.
made these claims, it was her opinion that he did so because he thought
that living with the intervenor would be the only way to maintain contact
with him.
A trial court’s factual findings will not be set aside unless they are clearly
erroneous. Kirwan v. Kirwan, 185 Conn. App. 713, 726, 197 A.3d 1000
(2018). ‘‘A finding of fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’ (Emphasis in original;
internal quotation marks omitted.) Id. Because there is evidence in the
appeal. See In re Janazia S., 112 Conn. App. 69, 92, 961 A.2d 1036 (2009).
6
General Statutes § 46b-129 (j) (2) provides: ‘‘Upon finding and adjudging
that any child or youth is uncared for, neglected or abused the court may
(A) commit such child or youth to the Commissioner of Children and Fami-
lies, and 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; (B) 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; (C) vest such child’s or youth’s permanent legal
guardianship in any 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 in accordance with the require-
ments set forth in subdivision (5) of this subsection; or (D) place the child
or youth in the custody of the parent or guardian with protective supervision
by the Commissioner of Children and Families subject to conditions estab-
lished by the court.’’
7
Testimony from trial also revealed complaints from Leo L. and Dakota
F. H. that their foster father had struck them on the buttocks with a wooden
spoon in early June, 2018. The foster father denied the claim and stated
that he would hit a wooden spoon against his own hand in order to threaten
discipline. A department social worker testified that when she observed the
children with their foster father after these allegations, the children were
affectionate and loving with him.