In re Kadon M. ( 2019 )

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IN RE KADON M.*
(AC 42606)
Elgo, Moll and Devlin, Js.
Syllabus
The respondent mother appealed to this court from the judgment of the
trial court transferring guardianship of her minor child, K, to K’s paternal
grandmother. After K had been adjudicated neglected, he was committed
to the custody of the petitioner, the Commissioner of Children and
Families. Thereafter, the petitioner filed a motion to open and modify
the dispositive order of protected supervision to transfer guardianship
to K’s paternal grandmother. During the trial on the motion to open,
the trial court denied the oral motion of the court-appointed attorney
for K to appoint a guardian ad litem. On appeal, the mother claimed
that the trial court abused its discretion by denying that motion. Held
that the trial court did not abuse its discretion when it denied the oral
motion to appoint a guardian ad litem, as the court did not require the
input of a guardian ad litem in order to determine the best interests of
K; the decision to appoint a guardian ad litem was within the broad
discretion of the trial court, the court’s denial of the motion to appoint
a guardian ad litem in no way precluded the respondent mother or the
attorney for K from presenting evidence for the court to weigh and
consider in conducting its best interests analysis, and the mother failed
to explain how the court’s failure to appoint a guardian ad litem would
have affected the trial, as the record before the trial court was replete
with evidence to assist its determination of the best interests of K,
including evidence that the mother had not complied with the specific
steps ordered by the court and ample evidence to support the court’s
finding that the paternal grandmother, who had played a major role in
K’s life and was licensed as a foster parent to care for similar children,
was a suitable and worthy guardian.
Argued September 6—officially released October 21, 2019**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to adjudicate the respondents’ minor child
neglected, brought to the Superior Court in the judicial
district of Hartford, Juvenile Matters, where the court,
C. Taylor, J., adjudicated the child neglected and
ordered a period of six months protective supervision
with custody vested in the respondent father; thereafter,
the court, Dannehy, J., sustained an order of temporary
custody vesting custody of the minor child in the peti-
tioner; subsequently, the court Dannehy, J., denied the
ex-parte motion of the attorney for the minor child
to appoint a guardian ad litem; thereafter, the court,
Hoffman, J., denied the oral motion of the attorney for
the minor child to appoint a guardian ad litem and,
following a hearing, granted the motion filed by the
petitioner to open and modify the dispositive order of
protective supervision, and transferred guardianship of
the minor child to his paternal grandmother, and the
respondent mother appealed to this court. Affirmed.
Stein M. Helmrich, for the appellant (respondent
mother).
Sara Nadim, assistant attorney general, with whom,
on the brief, were William Tong, attorney general, and
Benjamin Zivyon, assistant attorney general, for the
appellee (petitioner).
Kristen Wolf, for the minor child.
Opinion
DEVLIN, J. The respondent mother1 appeals from the
judgment of the trial court transferring guardianship of
her son, Kadon M., to his paternal grandmother. On
appeal, the respondent claims that the trial court
improperly denied the oral motion of the attorney for
Kadon M. to appoint a guardian ad litem.2 We disagree
and, accordingly, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. Kadon M. is a seven year old child
currently under the care of his paternal grandmother.
On June 26, 2017, the petitioner, the Commissioner of
Children and Families, filed a neglect petition on behalf
of Kadon M. due to concerns regarding medical and
physical neglect and the respondent’s transiency. Fol-
lowing a trial, the court, C. Taylor, J., determined that
Kadon M. was neglected and ordered a period of six-
month protective supervision with custody vested in
Kadon M.’s father on March 5, 2018.
Subsequently, on June 8, 2018, Kadon M.’s father was
incarcerated and, as a result, the petitioner initiated a
ninety-six-hour hold on Kadon M. On that day, Kadon
M. was placed with his paternal grandmother. A few
days later, on June 12, 2018, the trial court, Dannehy,
J., issued an order of temporary custody, giving legal
custody of Kadon M. to the petitioner.
Several months later, on December 13, 2018, the peti-
tioner filed a motion to open and modify the dispositive
order of protective supervision to a transfer of guardian-
ship to Kadon M.’s paternal grandmother. No agreement
was reached between the parties to transfer guardian-
ship of Kadon M. and a trial was scheduled for January
7, 2019. On January 4, 2019, the Friday before the com-
mencement of trial, the court-appointed attorney for
Kadon M., Attorney Kristen Wolf, filed an ex parte
motion for the appointment of a guardian ad litem. In
the motion, Attorney Wolf asserted that a guardian ad
litem ‘‘[was] necessary to protect and ensure that the
best interests of the minor child, [Kadon M.], are being
met.’’ The court, Dannehy, J., denied this motion and,
in doing so, noted that it was improper to file a motion
for a guardian ad litem on the eve of trial.
On January 7, 2019, a trial was held on the petitioner’s
motion to open and modify the dispositive order of
protective supervision to a transfer of guardianship.
Before evidence was presented, Attorney Wolf orally
moved to appoint a guardian ad litem. At this time,
Attorney Wolf explained that, during a meeting with
Kadon M. on the Friday before trial, he told her that
he preferred to be with his mother, rather than with his
paternal grandmother and father. According to Attorney
Wolf, this position represented a sudden change
because Kadon M. had frequently and consistently
asserted his preference to remain with his paternal
grandmother and father. Indeed, counsel for the peti-
tioner stated that Kadon M., as recently as December
27, 2018, informed one of the petitioner’s social workers
that ‘‘he wished to remain with his grandmother.’’ In
response to this shift in opinion, Attorney Wolf
explained: ‘‘I actually filed a motion for a guardian ad
litem to investigate the reason for the change and also
to investigate whether or not his change in position is
in his best interest. . . . I’ve been meeting with him
readily all along, that his position changed so drastically
kind of at the last minute, and I’m not sure that I can
adequately represent to the court—I can adequately
represent his position to the court, but I can’t adequately
represent whether or not that’s in his best interest.’’
Nonetheless, despite these concerns, Attorney Wolf
reaffirmed: ‘‘I know what my client wants, and I’m pre-
pared to represent that. But if the court asks me whether
or not that’s in my client’s best interest, I’m not sure
that I can answer that question, which is why I would
like the court to appoint a guardian ad litem to weigh
in on that fact.’’ The court, Hoffman, J., denied the oral
motion, stating that ‘‘the court can find what’s [in the]
best interest of the child,’’ and the trial proceeded.
During trial, the court heard testimony regarding the
caretaking qualifications of the respondent as com-
pared with the paternal grandmother. The evidence
indicated that although the respondent completed her
therapy for intimate partner violence, she had not com-
pleted her court-ordered substance abuse and mental
health treatment. Moreover, as the court later stressed,
there was considerable testimony regarding an incident
during which the respondent visited the daycare of
Kadon M.’s half brother. Despite the fact that Kadon
M.’s half brother was committed to the petitioner’s cus-
tody and the respondent was not allowed to visit him
unsupervised, she apparently collaborated with the
father of Kadon M.’s half brother to enter through a
locked back door and briefly visit her son. The court’s
concern here was compounded by the fact that, at the
time of the daycare incident, the respondent was sub-
ject to a protective order prohibiting contact with the
father of Kadon M.’s half brother. This order was issued
in response to incidents of domestic violence and
assault committed against the respondent by the father
of Kadon M.’s half brother. The court also heard testi-
mony of a strong and compassionate relationship
between the paternal grandmother and Kadon M. Kadon
M. has been raised by his paternal grandmother for
most of his life and has told social workers that he feels
happy and safe with his grandmother. Furthermore,
Kadon M.’s paternal grandmother is a licensed foster
parent who has previously cared for other children
under the petitioner’s custody.
After hearing testimony and argument, the court
issued an oral decision on January 7, 2019. The court
ruled that a transfer of guardianship to the paternal
grandmother was in the best interests of Kadon M. In
support of its ruling, the court found that the relation-
ship between the paternal grandmother and Kadon M.
is extensive and bonded, and that the paternal grand-
mother is capable of meeting Kadon M.’s needs. In addi-
tion, the court found that neither the respondent nor
Kadon M.’s father is currently a suitable guardian for
Kadon M. In particular, the court expressed its concern
that the respondent had not completed her substance
abuse or mental health treatment. The court was also
greatly concerned about the incident at the daycare.
Accordingly, the court transferred guardianship of
Kadon M. to his paternal grandmother. This appeal
followed.
On appeal, the respondent argues that the court
improperly denied Attorney Wolf’s oral motion to
appoint a guardian ad litem. We disagree.
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) 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).
During such proceedings, the trial court is required to
appoint counsel to represent the minor child’s interests
pursuant to General Statutes § 46b-129a (2) (A). ‘‘The
primary role of any counsel for the child shall be to
advocate for the child in accordance with the Rules of
Professional Conduct, except that if the child is incapa-
ble of expressing the child’s wishes to the child’s coun-
sel because of age or other incapacity, the counsel for
the child shall advocate for the best interests of the
child.’’ General Statutes § 46b-129a (2) (C). In addition,
§ 46b-129a (2) (D) provides in relevant part: ‘‘If the
court, based on evidence before it, or counsel for the
child, determines that the child cannot adequately act
in his or her own best interests and the child’s wishes,
as determined by counsel, if followed, could lead to
substantial physical, financial or other harm to the child
unless protective action is taken, counsel may request
and the court may order that a separate guardian ad
litem be assigned for the child . . . . The guardian ad
litem shall perform an independent investigation of the
case and may present at any hearing information perti-
nent to the court’s determination of the best interests
of the child.’’ (Emphasis added.)
Our Supreme Court has further expounded on the
distinction between an attorney for a minor child and
a guardian ad litem. Initially, the attorney for a minor
child ‘‘serve[s] the dual roles of advocate and guardian
ad litem for a child.’’ In re Christina M., 280 Conn. 474,
491, 908 A.2d 1073 (2006). Then, should a trial court
later appoint a guardian ad litem as well, the court has
defined the parameters of each representative’s role.
‘‘Although there is often no bright line between the
roles of a guardian ad litem and counsel for a minor
child, the legal rights of a child may be distinct from
the child’s best interest. When the roles do overlap, ‘it
is only because, in such cases, the rights of a child and
the child’s best interest coincide. While the best interest
of a child encompasses a catholic concern with the
child’s human needs regarding his or her psychological,
emotional, and physical well-being, the representation
of a child’s legal interests requires vigilance over the
child’s legal rights. . . .’ In re Tayquon H., 76 Conn.
App. 693, 706–707, 821 A.2d 796 (2003).’’ In re Christina
M., supra, 491–92. ‘‘Generally speaking, then, counsel
bears responsibility for representing the legal interest
of a child while a guardian ad litem must promote and
protect the best interest of a child.’’ Id., 492.
Previously, this court has noted that the determina-
tion of whether to appoint a guardian ad litem ‘‘is essen-
tially a question of fact for the [trial] court. In addition
to setting forth sufficient evidence to demonstrate [the
need for a guardian ad litem], the [respondent] must
also demonstrate [on appeal] that the alleged improper
failure by the [trial] court to appoint a guardian ad litem
affected the result of the trial.’’ In re Joseph L., 105
Conn. App. 515, 534, 939 A.2d 16, cert. denied, 287 Conn.
902, 947 A.2d 341, 342 (2008), citing In re Brendan C.,
89 Conn. App. 511, 521, 874 A.2d 826, cert. denied, 274
Conn. 917, 879 A.2d 893, cert. denied, 275 Conn. 910,
882 A.2d 669 (2005). In the time since In re Joseph
L. and In re Brendan C. were decided, the General
Assembly has amended the language of § 46b-129a.
Prior to 2011, the statute contained mandatory language
requiring that ‘‘[w]hen a conflict arises between the
child’s wishes or position and that which counsel for
the child believes is in the best interest of the child,
the court shall appoint another person as guardian ad
litem for the child.’’ (Emphasis added.) Public Act 2001,
No. 01-148, § 1. The current statute no longer contains
such mandatory language; instead, the current statute
provides that the trial court may appoint a guardian
ad litem. Public Acts 2011, No. 11-51, § 17. The present
case is the first time since the statute was revised that
we have been asked to review a trial court’s determina-
tion of whether to appoint a guardian ad litem. Nonethe-
less, the revised permissive language of the statute reaf-
firms our prior holdings that the decision to appoint a
guardian ad litem is within the broad discretion of the
trial court. See In re Joseph L., supra, 534.
Accordingly, we consider whether the trial court
abused its discretion in denying the oral motion to
appoint a guardian ad litem.3 ‘‘We have stated that when
making the determination of what is in the best interest
of the child, [t]he authority to exercise the judicial dis-
cretion 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 posi-
tion to second-guess the opinions of witnesses, profes-
sional or otherwise, nor the observations and conclu-
sions of the [trial court] when they are based on reliable
evidence.’’ (Internal quotation marks omitted.) In re
Anthony A., 112 Conn. App. 643, 654, 963 A.2d 1057
(2009).
We agree with the trial court’s assessment that it did
not require the input of a guardian ad litem in order to
determine the best interests of Kadon M. It is the prov-
ince of the trial court to determine the best interests of
the minor child, supported by evidence and testimony-
-—including other evidence of the child’s wishes con-
veyed through counsel for a minor child—presented at
trial. See In re Mindy F., supra, 153 Conn. App. 802.
Furthermore, the respondent has not demonstrated that
the court’s denial of the motion to appoint a guardian
ad litem affected the result of the trial.4 In re Joseph
L., supra, 105 Conn. App. 534.
The determination of the best interests of a child is
an all-encompassing inquiry, in which the trial court
considers a myriad of factors. This court has previously
elaborated that ‘‘[a]lthough the term best interest is
elusive to precise definition, one commission study
aptly observed that the best interests of the child has
been generally defined as a measure of a child’s well-
being, which includes his physical (and material) needs,
his emotional (and psychological) needs, his intellec-
tual and his moral needs.’’ (Internal quotation marks
omitted.) In re Tayquon H., supra, 76 Conn. App. 704.
Accordingly, the trial court may consider any number
of factors that pertain to these considerations, such as
the parents’ rehabilitative status, the length of time that
the child is in the temporary care of the state, the child’s
need for permanency, the proposed guardian’s suitabil-
ity, and the child’s bond with the proposed guardian.
The court’s denial of the motion to appoint a guardian
ad litem in no way deprived the respondent or Attorney
Wolf from presenting evidence of any of these factors
for the court to weigh and consider in conducting its
best interests analysis.
Moreover, the record before the trial court was
replete with evidence to assist its determination of the
best interests of Kadon M. The petitioner submitted
substantial evidence indicating that the respondent had
not complied with the specific steps ordered by the
trial court. Specifically, there was evidence presented
that the respondent had completed neither her sub-
stance abuse treatment nor her mental health treat-
ment. While the respondent had completed therapy for
intimate partner violence, there was also evidence that
the therapy was not wholly successful because the
respondent had continued contact with the perpetrator
of the violence despite an outstanding protective order.
Additionally, there was evidence that the respondent
contravened the petitioner’s custody order to visit
Kadon M.’s half brother at school while she was subject
to the petitioner’s custody. At the same time, there was
ample evidence presented to support the trial court’s
finding that the paternal grandmother was a suitable
and worthy guardian. The evidence presented indicated
that the grandmother has played a major role in Kadon
M.’s life, has a meaningful relationship with Kadon M.,
and that Kadon M. is doing well under her care. More-
over, the paternal grandmother is licensed as a foster
parent to care for similar children. Therefore, because
the respondent failed to explain how the court’s failure
to appoint a guardian ad litem would have affected the
trial, her claim fails.
Accordingly, we conclude that the trial court did not
abuse its discretion in denying the motion to appoint
a guardian ad litem.
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.
** October 21, 2019, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The petitioner, the Commissioner of Children and Families, instituted
this transfer of guardianship proceeding in the interests of Kadon M., naming
both mother and father as respondents. Only the mother has filed an appeal
from the judgment of the trial court. For simplicity, all references to the
respondent herein are to the mother.
2
On September 6, 2019, the attorney for Kadon M., Attorney Kristen Wolf,
filed an untimely statement with this court adopting the appellant’s brief
and joining the appellant in requesting this court to reverse the trial court’s
transfer of guardianship. See Practice Book § 67-13 (allowing counsel for
minor child to file statement adopting brief of either appellant or appellee
within ten days of filing of appellee’s brief).
3
The respondent has limited her claim on appeal to the court’s denial of
the oral motion for the appointment of a guardian ad litem.
4
Both during trial and before this court, counsel for the respondent have
argued that a guardian ad litem was necessary to prevent prejudice to the
respondent. These arguments were premised on the proposition that once
a transfer of guardianship to a family member is granted, it would be far more
difficult for the respondent to reinstate guardianship because, in subsequent
proceedings, there is no right to court-appointed counsel. During oral argu-
ment before this court, the respondent contended that a guardian ad litem
would have supported commitment of Kadon M. to the petitioner’s custody,
rather than a transfer of guardianship to his paternal grandmother. This
assertion specifically assumes that a guardian ad litem would have advocated
that continued foster care is preferable to the more permanent disposition
of a transfer of guardianship because, under commitment, the mother would
continue to have court-appointed counsel. Besides amounting to sheer spec-
ulation, these arguments were duly made by counsel for the respondent
and necessarily considered by the trial court. See In re Brendan C., 89
Conn. App. 511, 529, 874 A.2d 826, cert. denied, 274 Conn. 917, 879 A.2d
893, cert. denied, 275 Conn. 910, 882 A.2d 669 (2005) (noting that father
speculated guardian ad litem would have formulated an alternative to com-
plete termination of parental rights while failing to address why trial counsel
could not have presented such an alternative). There is no basis in the
record or in the law for the claim that a guardian ad litem would have
advanced this position nor would such an appointment have changed the
result.