IN RE: John R. and Ashanty R.1 (2010)

MEMORANDUM OF DECISION

The file reflects that on October 30, 2008, the Commissioner of the Department of Children and Families (commissioner or DCF), filed a neglect petition regarding the children John R. (born in August 1997) and Ashanty R. (born in September 2002) against the respondent mother.   On May 8, 2009, the court made a finding of neglect and ordered protective supervision of the children with the mother for a period of six months.   Issues arose concerning the mother's care of the children and on September 23, 2009, the commissioner requested and the court issued an order of temporary custody.   This order vested temporary custody of John with his maternal grandmother and temporary custody of Ashanty with her maternal aunt.   The order of temporary custody was sustained on October 1, 2009.   The grandmother and aunt recently moved in together, and thus, the children are presently residing together.

Pending before the court is the commissioner's motion to open and modify the orders of protective supervision in order to transfer custody and guardianship.   See General Statutes §§ 46d-120, et seq.   The relief sought by the commissioner's motion, as orally modified on the record, is for custody and guardianship of the children to be awarded to the maternal grandmother.²  The mother, represented by counsel, supports the commissioner's motion.   Counsel appointed as the attorney and guardian ad litem for Ashanty supports the commissioner's motion.   A guardian ad litem and an attorney were separately appointed for John. They too support the commissioner's motion.   Through counsel, the respondent father objects to this motion.   The father has also filed a motion for custody and guardianship of the children to be awarded to him.   An evidentiary hearing was held on the motions on Wednesday, November 3, 2010.   The commissioner called the children's therapists and the DCF social worker.   The father testified in support of his motion.

The court agrees with the commissioner that the criterion governing the disposition of these motions is what is in the children's best interests.   The court further agrees with the father that under the circumstances presented, this standard must be considered based on a rebuttable presumption that it is in the children's best interests to be in the custody of the parent.   See generally In Re Cameron C., 103 Conn.App. 746, 755-57, 930 A.2d 826 (2007).   Based on the evidence and the parties' positions, the court concludes that this presumption has been rebutted and that it is in the best interests of the children for their custody and guardianship to be placed with the maternal grandmother.

The mother and father separated in 2002 and they were subsequently divorced.   After the separation, the mother retained custody of the children and the father had visitation with them until he relocated to Puerto Rico in 2008.   Since then, he has returned to Connecticut on four occasions to visit the children.   John visited with his father in Puerto Rico in August 2010.   Ashanty has never been to Puerto Rico. Since 2008, the father has also endeavored to maintain written or telephonic contact with the children.   Nevertheless, any close or attached relationship between the father and the children has been difficult or strained because of his physical distance from them after his relocation to Puerto Rico. An interstate compact study was performed indicating that the children's relocation to the father's residence in Puerto Rico would be suitable.

Ashanty has been diagnosed with' anxiety disorder.   According to her therapist, the possibility of her father acquiring custody and her relocation to Puerto Rico has become a stressor for her.   The therapist testified that Ashanty does not want to relocate to Puerto Rico and wants to live either with her grandmother or her aunt.   She also testified that Ashanty feels secure with her grandmother and that a relocation to Puerto Rico would present adjustment difficulties for Ashanty and would be inadvisable.

John has exhibited oppositional behavior and has been diagnosed with an adjustment disorder with mixed anxiety and depression.   He visited his father in Puerto Rico in August 2010, enjoyed himself, and on at least one occasion indicated a desire to live there with his father.   However, according to the testimonies of his therapist and the DCF social worker, John has most recently indicated that he wants to remain with this grandmother.   John's therapist also testified that John has a secure, bonding relationship with his grandmother and that his continued custody with her would be in his best interests.

Based on the totality of the evidence, the court concludes that the grandmother is suitable and worthy of guardianship and that a transfer of custody and guardianship to her is in the children's best interests.   Based on the totality of the evidence, the court also concludes that a transfer of custody and guardianship to their father and their relocation to Puerto Rico would not be in their best interests.   Such a transfer would present a stark and significant change for the children, which in turn, would potentially cause a deterioration or exacerbation of their diagnosed conditions based on the opinions of the children's therapists.

The court notes a dispute about the children's desires based on the father's testimony that they have expressed to him that they want to reside with him.   The court credits the testimony of the commissioner's witnesses on this issue indicating the children's desire to reside with their grandmother and not to reside with their father.   In this regard, the court has also considered the asserted positions of the children's attorneys and guardians ad litem.   Additionally, the court also notes the evidence indicating the grandmother's plans to relocate to Chicago.   This factor does not change the court's conclusion particularly in light of the children's strong emotional bond to the grandmother and their expressed desire to reside with her.

The court acknowledges the father's laudable interest in gaining custody of his children and the presumption that such reunification is desirable or ideal.   Nevertheless, under the particular circumstances here, coupled with the history of the children's relationships and difficulties, the court finds that it is in their best interests for the commissioner's motion to be granted.

Therefore, the motion to open and modify dispositive order of protective supervision to transfer custody and guardianship filed by the commissioner of the department of children and families is hereby granted, and custody and guardianship of John R. and Ashanty R. are awarded to their maternal grandmother.   The father's objection to the motion is overruled.   The father's motion for custody and guardianship is denied.

So ordered this 9th day of November 2010.

STEVENS, J.

FOOTNOTES

FN2. General Statutes § 46b-129(j) provides the following in relevant part:Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families.   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, or the court may vest such child's or youth's legal guardianship ․ 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..  FN2. General Statutes § 46b-129(j) provides the following in relevant part:Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families.   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, or the court may vest such child's or youth's legal guardianship ․ 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.

Stevens, Barry K., J.