IN RE: Alaena Q. (2011)

MEMORANDUM OF DECISION

BACKGROUND

This matter comes before the court on the motion of Alaena Q's mother, Debra, to restore guardianship of Alaena to her.   By order dated July 13, 2006 the guardianship of Alaena had been placed in the child's maternal grandmother, Jessica.   In her motion, Debra claims that she has been successful on probation, has complied with every recommendation of the court, the Department of Children and Families, and the guardian ad litem, and has proved herself ready to resume guardianship of her daughter.   The maternal grandmother has opposed the motion arguing that the issues that resulted in guardianship being taken from mother still exist and, in any event, it is in the best interests of the minor child that guardianship remains in the maternal grandmother.   The guardian ad litem/attorney for minor child argued, only after all of the evidence was presented, that the motion should be granted and guardianship should be restored in the mother.   The matter was tried on August 2 and 9, September 20, and November 1, 2010.   The court heard from numerous witnesses and accepted several exhibits into evidence.   The parties, including the guardian ad litem/attorney for minor child, were given the opportunity to present post-trial briefs and make closing arguments to the court.   Based on all of the evidence presented, the court finds the following facts proved by a fair preponderance of the evidence.

FINDINGS OF FACT

On February 3, 2005, the Department of Children and Families invoked a 96-hour hold on behalf of Alaena.   The Department also filed a neglect petition against Debra, and Alaena's father, Timothy.   The Department had begun investigating Alaena's situation in November 2004 regarding issues of her parents' mental health, substance abuse, domestic violence and conditions of the home.   Ultimately, the 96-hour hold and neglect petition were sought because these issues culminated in the arrest of Debra on February 3, 2005 on a number of charges arising from an attack she made on a friend.   At same time, Timothy was also being sought by the police on an outstanding arrest warrant.¹  As a result of the neglect petition, Alaena was placed in the custody of her grandmother, Jessica.   Aleana stayed in Jessica's custody until July 13, 2006 when guardianship of Alaena was officially transferred from the Department to Jessica.²  Debra, having just been released from incarceration due to her criminal matter, did not oppose the transfer of guardianship, but made clear her intention to seek reunification with Alaena.

Since that time, Debra has filed a number of motions seeking either to reinstate her guardianship of Alaena or to increasing her visitations with Alaena.   Jessica has opposed such motions and has only agreed to increased visitation after extensive negotiations, often shortly before a scheduled trial on Debra's motion, and then only as explicitly set forth in stipulations regarding visitation.

At the time of the trial in this matter, Alaena was sharing her time almost equally between Debra's home and Jessica's home.   She has a bedroom in both homes and sleeps roughly the same number of nights in each home.   Debra, Jessica, and Rick all transport Alaena to her school and various activities.   All three attend at least some of Alaena's activities.   While there have been and are disputes between Debra on the one hand and Jessica and Rick on the other as to certain parenting decisions regarding Alaena, the testimony was clear that all care for and love Alaena, and Alaena is bonded to all of them.

As noted above, there were a number of issues that caused the Department concern about Debra's care for Alaena.   The evidence is clear that there is virtually no dispute that almost all of those issues have been addressed.   Debra has a suitable home for Alaena;  she is working on a regular basis;  and is making a sufficient income to care for Alaena.   When the Department last conducted a visit of Debra's home it found the home clean, with suitable food and clothing for Alaena.   The evidence also established that Debra has been drug free since being released from prison in 2006 and is otherwise compliant with her probation.   Her probation is set to expire on July 6, 2011.   Debra has had no involvement with the criminal justice system since her release from prison.   As to all of the above facts, Jessica has offered no evidence to the contrary.

Instead, Jessica claims that the evidence shows that Debra has not been compliant with the mental health treatment recommended by the Department.   She argues that this non-compliance raises concerns in other areas like a stable home environment for Alaena, or potential drug use and criminal activity by Debra.   In particular, Jessica places great reliance on court ordered evaluations performed by Ilene Grueneberg, Ph.D. in 2005, 2006 and 2008.   She argues that in each report Dr. Grueneberg stressed the importance of continued therapy by Debra.   She then argues that the evidence shows that Debra has not engaged in the required therapy.   In particular, Jessica points to Debra's counseling records from Bristol Hospital and the Department's April 6, 2010 social study as evidence that Debra has not been compliant in her mental health treatment.

In response, Debra offered the testimony of Dr. Jeffrey Shelton, who she currently sees at the Bristol Hospital Counseling Center.   Dr. Shelton testified that he has met with her four times.   He further testified that he has had a reasonable amount of contact with her.   In his opinion, Debra does not currently need therapy.   He told her just to meet with him every two months and that for the most part she has been adherent with her treatment, which is principally to manage her condition through medication.

Dr. Shelton's testimony completely undermined the Department's conclusion in its April 6, 2010 study that there are concerns “with Mother's mental health stability and her inconsistent involvement with mental health services to address this concern.”   Contrary to what the Department reported, Debra is not in jeopardy of being unsuccessfully discharged by Dr. Shelton.   After hearing the testimony of Melissa Knox, the social worker who prepared the April 6, 2010 study, the court concludes that the Department's conclusions in this regard are entitled to no weight.   Ms. Knox testified that she never spoke to Dr. Shelton.   Her conclusion about Debra's compliance with treatment was based on a brief telephone conversation with Carolyn Yagaloff, a therapist Debra had treated with at Bristol Hospital from March 2008 until May 2010.   According to Ms. Knox, Ms. Yagaloff reported that Debra was not fully compliant with treatment, was experiencing increased stress and anxiety, and at a risk of relapse.   Dr. Shelton directly refuted these contentions.   In fact, he testified that Debra's records reflect that when Ms. Yagaloff left the hospital in May 2010 her transfer summary for Debra indicated that therapy should be terminated and Debra only needed medicine management.   In that summary, Ms. Yagaloff also noted that the “Treatment Goals” had been “Generally Met.” Pet. Ex. 8. The only unresolved treatment issues noted were “psychosocial stressors,” and no therapy was suggested for dealing with any such stressors.   Id.

Dr. Shelton was the only treatment provider to testify who has actually treated Debra.   The court found him to be credible.   While it is true that the records from Bristol Hospital show that Debra's attendance at therapy sessions was at times inconsistent, any past failures to attend are not of any concern to Dr. Shelton.   Nor apparently were they a concern for Ms. Yagaloff when she prepared her final summary for Debra.

Furthermore, Dr. Shelton's conclusions regarding Debra's current mental state is consistent with other evidence the court saw.   Debra has exhibited no external signs of a mental disorder that would require ongoing therapy.   She is working regularly, maintains a suitable home, has appropriate interactions with Alaena, is drug free and has had no issues with the law.   The court had the opportunity to observe Debra's demeanor on four different occasions.   At no time did she exhibit any signs of an untreated mental disorder, despite the obvious stress of a trial against her mother over guardianship of her daughter.

Any evidence relied upon by Jessica is just not persuasive.   The reports by Dr. Grueneberg, while thorough, are dated.   Dr. Grueneberg's most recent evaluation was done in November 2008.   And while Dr. Grueneberg recommended that Debra's therapy resume on a weekly basis, her primary concern was that joint counseling take place between Debra and Jessica.   That report notes that Debra is interested in such therapy, but Jessica is not.   Dr. Grueneberg also noted that “the ways in which Jessica subtly undermines Debra's efforts are significant and, accordingly, very frustrating.”   In light of this, Dr. Grueneberg also recommended individual therapy for Jessica.

The conflict between Debra and Jessica was apparent to the court.   Nevertheless, it appeared to the court that since this trial began, both have made efforts to accommodate the other and address many of the issues identified by Dr. Grueneberg.   Given the constantly changing relationship between mother and daughter and Dr. Shelton's current assessment of Debra's need for individual therapy, the court finds that Dr. Grueneberg's evaluations of 2005, 2006 and 2008 provide little information regarding Debra's current status and need for individual therapy.   The court has already addressed the other evidence relied upon by Jessica-the Department's April 6, 2010 study and the Bristol Hospital treatment records-and finds, in light of Dr. Shelton's testimony and other evidence, that none of that evidence reflects a failure by Debra to seek treatment.

Consequently, the court finds by a fair preponderance of the evidence that Debra has in fact met all requirements and recommendations given to her by the court and the Department.   The court also finds it significant that the guardian ad litem/attorney for minor child has reached this same conclusion.

The court also heard considerable evidence regarding the best interests of Alaena.   That evidence established that while Alaena is closely bonded with Debra, she recognizes Jessica and Rick as her psychological parents.   This is not surprising given that until recently they have been her primary caregivers.   The evidence also established that Alaena is a happy, healthy little girl who enjoys her time with both her grandparents and her mom.   By all accounts she is doing well in school and in relationships with others.   Jessica and Rick currently pay for her to attend a parochial elementary school where she is happy.   If guardianship is transferred to Debra, Alaena may have to leave that school and attend public school instead.   Alaena currently has medical insurance through Jessica.   There was no evidence that Debra would not be able to secure insurance for Alaena if guardianship is transferred.

The rest of the evidence the court heard dealt with issues each party has with the other's parenting style.   Jessica believes that Debra is too lenient with Alaena, and does not like what Debra feeds Alaena or how she dresses her.   Debra believes that Jessica interferes in Debra's relationship with Alaena and makes it clear that Debra is not welcome in her home.   After hearing all of the evidence regarding particular examples of perceived bad parenting, the court finds none of these issues to be of any material significance.   Parents in an intact home often disagree on how best to raise their children;  the fact that Debra and Jessica would have such disagreements is not at all surprising.   The existence of these differences tells the court nothing about what is in Alaena's best interests, other than it would be best for her if her mother and grandmother could get along better.

DISCUSSION

“General Statutes § 46b-129(m) sets forth the procedure by which a commitment may be challenged and vests primary authority for revocation of commitment with the trial court.”  In re Cameron C., 103 Conn.App. 746, 752, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906, 942 A.2d 414 (2008).   Pursuant to that statute, “a parent ․ may file a motion to revoke a commitment, and, upon finding the cause of commitment no longer exists, and that such revocation is in the best interests of such child ․ the court may revoke commitment of such child ․” General Statutes § 46b-129(m).

In connection with any such motion, the parent seeking revocation must first prove that the cause for commitment no longer exists.  In re Patricia C., 93 Conn.App. 25, 31-31, 887 A.2d 929 (2005), cert. denied, 277 Conn. 931, 896 A.2d 101 (2006).  “The court, in determining whether cause for the commitment no longer exists, would obviously look to the original cause for commitment to see whether the conduct or circumstances that resulted in commitment continue to exist.”  In re Cesar G., 56 Conn.App. 289, 294, 742 A.2d 428 (2000).   In particular, the court can and should look to the specific steps recommended by the Department and ordered by the court to see if the parent has complied with those steps.  “The specific steps provide a benchmark by which the court measures whether ․ reunification ․ is appropriate ․” In re Allison G., 276 Conn. 146, 161, 883 A.2d 1226 (2005).

If the parent meets this initial burden, then the burden switches to the party opposing the motion to prove that reunification is not in the best interests of the child.  “[R]evocation of commitment proceedings under § 46b-129(m) [are] conducted with a presumption similar to that found in § 46b-56b.   See In re Juvenile Appeal (Anonymous), 177 Conn. 648, 659, 420 A.2d 875 (1979).   Under the In re Stacy G. framework, after the natural parent establishes that the cause for commitment no longer exists, the guardian is saddled with the burden of establishing that placement with the natural parent is not in the child's best interest.   The natural parent, therefore, has the benefit of a presumption that revocation of commitment is in the child's best interests.  In re Stacy G., supra, 94 Conn.App. 353 n.4. As our Supreme Court has stated, ‘parents are entitled to the presumption that absent a continuing cause for commitment, that revocation will be in the child's best interests unless the [guardian] can prove otherwise’ In re Juvenile Appeal (Anonymous), supra, 659.”  In re Cameron C., supra, 103 Conn.App. 755-56.   As the Appellate Court noted, “The overarching notion that a fit parent has the fundamental right to make child rearing decisions unless that would cause real and significant harm to the child has a constitutional basis.”   Id., n.12. Similarly, our Supreme Court has held that, “[c]concomitant reunification efforts on the part of the parents and the department help to preserve the integrity of the family and are based on the well settled notion that [t]he right of a parent to raise his or her children [is] recognized as a basic constitutional right.”  (Internal quotation marks omitted.)  In re Leah S., 284 Conn. 685, 696, 935 A.2d 1021 (2007).

Each party must meet its burden by a fair preponderance of the evidence.   In re Cameron C., supra, 103 Conn.App. 751 n.5. A fair preponderance of the evidence is “properly defined as the better evidence, the evidence having greater weight, the more convincing force in your mind.”  (Internal quotation marks omitted.)  Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

Thus, the first question the court must address is whether Debra has proven by a fair preponderance of the evidence that causes for commitment no longer exist.   The court finds that she has met that burden.   As noted above, she has complied with all requests of the Department and orders of the court, including the specific steps.   In fact, the only area of noncompliance asserted by Jessica is a failure to continue with individual mental health therapy.   As discussed above though, Debra has proved through her testimony, the testimony of Dr. Shelton and the transition summary of Ms. Yagaloff that she has addressed and continues to address any mental health issues.   She is following the directions of her current mental health doctor.   Jessica has presented no competent evidence that Debra currently requires any treatment beyond that offered by Dr. Shelton.³

Debra having met her burden, the court must address whether Jessica has proved by a preponderance of the evidence that it is Alaena's best interests for the guardianship to continue.   The court finds that Jessica has not met this burden.   All of the evidence presented showed that Debra is fully capable of parenting and taking care of Alaena.   There is no question that Jessica and Rick have done an admirable job as Alaena's surrogate parents over the last five years.   That is not the question though.   The issue is whether Jessica has presented sufficient evidence to overcome the presumption that Debra, having addressed the issues that resulted in Alaena's commitment, is entitled to parent her daughter.

Jessica points to a number of factors in support of her claim.   First, she claims that Alaena recognizes Jessica and Rick as her psychological parents.   She argues that because Alaena is thriving in the context of that relationship, it is not in her best interests to change it.

The court is not persuaded by this argument.   First, as noted above, it is not surprising that Alaena views Rick and Jessica as her psychological parents.   This alone cannot be enough to justify denying Debra's motion.   If it were, any guardian could defeat a motion to revoke commitment simply by arguing that they have bonded with the child and the child views them as their psychological parents.   That is not the law.

Second, the evidence showed that Alaena recognizes Debra as her mother.   Over at least the last year she has spent as much time in Debra's care as in Jessica and Rick's care.   Consequently, a change in guardianship should be less difficult for Alaena than for many children who are not in a shared parenting arrangement prior to the restoration of guardianship in the natural parent.   See, e.g., In re Cameron C., supra, 103 Conn.App. 748-49.⁴

Third, both Jessica and Rick testified that they view their roles as guardians as temporary.   Both felt that at some point Debra should resume full guardianship of Alaena.   Their concern is that Debra is not yet ready for that role given her past issues.   When asked when Debra would be ready, neither had an answer.   The court has already held that Debra has adequately addressed the issues that resulted in her losing guardianship of Alaena.   Thus, if that is the only hesitancy Jessica has to transitioning in her role from psychological parent to full-time grandmother, it legally is not an obstacle to revoking commitment.

Jessica also argues that because a transfer of guardianship to Debra could result in Alaena having to switch schools, it is not in her best interests to do so.   The evidence showed that Alaena is happy in her school and doing well there.   Having said that, there is a real question as to whether revoking the order of commitment will necessarily mean that Alaena will have to change schools.   Debra testified to her desire to have Alaena stay in her current school, if she can afford to keep her there.   Furthermore, Rick testified that if Debra could not afford it, he and Jessica would in all likelihood provide financial assistance.   Consequently, Jessica has failed to prove that a change in guardianship means a change in schools.   Even if she did though, the court is not persuaded that a change in schools should preclude the granting of the motion.   Children change schools for a number of reasons.   While there may be an adjustment period, most do just fine.   Alaena is only seven years old.   The court does not see a change of school at this age as necessarily being adverse to her best interests.

Jessica has raised other issues, including Debra's dating habits, the fact that she smokes, and whether she is firm enough with Alaena.   The court heard no evidence that Debra is or has been involved in any relationship that would present a threat or danger to Alaena.   The fact that Debra has a young daughter to raise does not mean that she must abstain from all other relationships.   Similarly, while the court believes that smoking is good for neither adults nor children, and would strongly urge any smoker, including Debra, to quit, smoking is not illegal.   Many parents unfortunately smoke.   That fact does not justify removing their children from their custody.   The other issues raised by Jessica are for the most part a matter of parenting style.   The fact that Debra's approach to parenting might be different than Jessica's does not mean one is better than the other.   None of the evidence presented by Jessica on these issues is sufficient to meet her burden to prove by a preponderance of the evidence that it is in Alaena's best interests for the guardianship to continue.

Finally, the court shares a concern expressed by the guardian ad litem/attorney for minor child regarding continuing the present shared parenting arrangement between Jessica and Debra.   As Alaena grows and matures it is important that she know and recognize a primary authority figure in her life.   This is particularly true given the strained relationship between Jessica and Debra.   Alaena should not be put in the middle of their battles and asked to choose sides.   Nor should she be subjected to conflicting views, instructions and rules.   The court agrees with the guardian ad litem that it is in Alaena's best interests that she have a mother primarily responsible for raising her with the support of two loving grandparents.

Having said this, the court does not in any way want to diminish the important role Jessica and Rick have played in Alaena's life.   They stepped up and assumed a critical role when Debra, due to a variety of issues, many of her own making, was not there to do so.   Jessica and Rick have done simply a wonderful job of raising Alaena to this point.   They are an integral part of Alaena's life and should remain so going forward.

The really encouraging part of this case is that Alaena has three people who love her dearly.   Working together, they can give this young girl a bright future full of possibilities.   The concern the court has is that Jessica and Debra have not always been able to work together.   They both resisted joint counseling.   Their communication, while improving, is still a long way from warm and close.   The best thing they can do for Alaena is work on their relationship so that she can experience with all of them together the love she now gets from them individually.

The court asked the parties about whether it should order visitation with Rick and Jessica if it were to grant Debra's motion.   Not surprisingly, Jessica said yes and Debra said no.   The guardian ad litem was against any such order at this time as it would provide yet another point of legal contention for the parties.   The court agrees.   The best solution is one where Debra, Jessica and Rick work cooperatively to develop appropriate time with Alaena in their new roles.   Recognizing how important Alaena's well-being is to all of them, the court expects that they will work through their differences to come up with a plan that is best for her.   That is what parents and grandparents do.   In the unfortunate event that they cannot work out such issues they can then return to court.   Before doing so, they should remember this court's key conclusions that:  1) it is time for Debra to resume the responsibility of being Alaena's full-time mother;  and 2) Jesscia's and Rick's active involvement in Alaena's life going forward is important.

CONCLUSION

For all the foregoing reasons, the biological mother's motion to revoke commitment and restore guardianship to her is GRANTED.

Bright, J.

FOOTNOTES

FN1. Debra was married to Timothy at the time that Alaena was taken into custody by the Department.   She has since divorced him and has had no contact with him in approximately five years.   She did seek and obtain a restraining order that prevents Timothy from having any contact with her.   Timothy is currently incarcerated awaiting trial on a number of charges including murder..  FN1. Debra was married to Timothy at the time that Alaena was taken into custody by the Department.   She has since divorced him and has had no contact with him in approximately five years.   She did seek and obtain a restraining order that prevents Timothy from having any contact with her.   Timothy is currently incarcerated awaiting trial on a number of charges including murder.

FN2. Also residing with Jessica is her husband Rick. Rick is and has been like a grandfather to Alaena..  FN2. Also residing with Jessica is her husband Rick. Rick is and has been like a grandfather to Alaena.

FN3. Jessica did offer the testimony of a Dr. Shrager, a clinical psychologist retained by Jessica to meet with Alaena and offer an opinion on what is in Alaena's best interests.   Dr. Shrager also sought to offer an opinion as to Debra's need for further counseling.   The court finds any such opinion to be of no value.   Dr. Shrager never met with Debra, even though she claims she thought about doing so..  FN3. Jessica did offer the testimony of a Dr. Shrager, a clinical psychologist retained by Jessica to meet with Alaena and offer an opinion on what is in Alaena's best interests.   Dr. Shrager also sought to offer an opinion as to Debra's need for further counseling.   The court finds any such opinion to be of no value.   Dr. Shrager never met with Debra, even though she claims she thought about doing so.

FN4. Both Ms. Knox and Dr. Shrager testified that they asked Alaena where she wanted to live and she said that she would like the current arrangement to stay the same, although she would like to see Debra more often.   The guardian ad litem/attorney for minor child has argued that it was inappropriate for either witness to ask such a question, and argues that the court should give little weight to such testimony.   The court agrees.   Given the testimony that all three parental figures-Debra, Jessica, and Rick-are bonded with Alaena and have appropriate and loving interactions with her, it is not surprising that this happy seven-year-old girl would not want things to change.   It is also not surprising that Alaena would not want to upset her mother or grandparents by choosing one over the other.   Thus, the natural course is for her to stay neutral and ask for things to remain the same..  FN4. Both Ms. Knox and Dr. Shrager testified that they asked Alaena where she wanted to live and she said that she would like the current arrangement to stay the same, although she would like to see Debra more often.   The guardian ad litem/attorney for minor child has argued that it was inappropriate for either witness to ask such a question, and argues that the court should give little weight to such testimony.   The court agrees.   Given the testimony that all three parental figures-Debra, Jessica, and Rick-are bonded with Alaena and have appropriate and loving interactions with her, it is not surprising that this happy seven-year-old girl would not want things to change.   It is also not surprising that Alaena would not want to upset her mother or grandparents by choosing one over the other.   Thus, the natural course is for her to stay neutral and ask for things to remain the same.

Bright, William H., J.