IN RE: Aziana H. (2013)

MEMORANDUM OF DECISION RE MOTIONS FOR RESTORATION OF GUARDIANSHIP

This matter concerns the best interests of Aziana H., a minor child whose date of birth is July 25, 2009.   Aziana H. was removed from her home on April 29, 2010 by the Department of Children and Families (DCF) based on domestic violence in the home, substance abuse in the home and lack of adequate supervision/conditions contrary to the welfare of the minor.   On April 29, 2010 the court issued an ex parte order of temporary custody in DCF. On May 6, 2010, the court modified the order and vested the OTC of Aziana H. to Linda P, her paternal great grandmother.   On October 20, 2010 there was adjudication and guardianship of Aziana H. was transferred to the paternal great grandmother, Linda P. Aziana is still in her custody.

Azia B., Aziana H's mother, filed a motion with this court to return custody and guardianship to her on September 18, 2012.   Antwoine H., Aziana H's. father, filed his own motion with this court for custody and reinstatement of guardianship in him on December 12, 2012.

A contested hearing on these motions was held before this court on March 21, 2013.   The father, mother and guardian appeared and were represented by counsel.   The attorney for the minor child also participated in the proceeding.

James Craig, DCF Social Worker testified at the hearing.   Azia B., Antwoine H. and Linda P. also testified.   A DCF Addendum study, dated January 30, 2013, which had been requested by the court in connection with this restoration matter, was introduced into evidence (Mother's Exhibit A).   Also a report from the Liberation program (Mother's Exhibit B) and a recent picture of Aziana and her father (Father's Exhibit 1) were also introduced.   The court has carefully considered all the evidence in determining whether either or both parties have met the burden of proof by a fair preponderance of the evidence as to restoration and the best interest of Aziana H.

FACTUAL FINDINGS

Aziana H. resides in the apartment of her paternal great grandmother, Linda P. This is a 3–bedroom apartment in Bridgeport.   Aziana H. is in good health and Linda P. is providing a loving and nurturing home environment for Aziana.   Linda P. is the primary caregiver to Aziana H. Linda P. had concerns about the mother's boyfriend.   The mother is no longer with that man.   Linda P. also had concerns with the mother's visits which were inconsistent until last year.   The mother now sees Aziana H. more frequently.   When Linda P. was asked what she thought was in the best interest of Aziana H., she stated Aziana H. would do well with the father or the mother.   Both love the child and the child loves both of them.   She thought joint custody would be best as it would not be good to remove the child from her apartment completely.

Azia B., the mother, has her own apartment.   She has completed programs.   She now has housing, food and clothing for Aziana H. There were no reported incidents at her home and she is currently living alone.   She testified that she works for Goodwill from 3 PM to 10 PM and her days off are Tuesdays and Thursdays.   Aziana H. has visited and stayed at the mother's apartment.   The mother testified that Aziana H. wakes up between 9 and 11 AM. and eats breakfast.   Aziana H. has lunch between 2 and 3 PM and dinner between 7 and 7:30 PM. Aziana H goes to sleep around 8:30 PM. The mother testified she has not had problems arranging visitation with Linda P. Although the mother has a brother, the only person who could help her care for Aziana H. is Linda P. The mother has not contributed financially to Linda P. for support but sometimes brings clothes.   She testified that if she becomes the sole guardian she would leave Aziana H. with Linda P. before she went to work and pick her up after work.   Aziana H. would then be put back to sleep at Azia B.'s apartment.

The father Antwoine H. has resided with his grandmother since late summer 2012.   He works for Boston Market from 7 AM to 3PM. He makes about $400.00 biweekly after taxes and child support are taken from his wages.   He testified that he contributes some money to Linda P. toward household expenses.   He testified that he sleeps in the same bedroom as Aziana H. That when he awakes he prepares breakfast and lays out Aziana H.'s. clothes before he leaves for work even if the child is sleeping.   He said when he comes home from work he becomes the primary caretaker.   When he comes home he plays and dances with Aziana H.

He testified that he is looking for a second job to earn more money.   He stated he and Azia B. can't agree on how to raise Aziana.   As an example he stated they want her to go to school next fall and attend dance classes but can't agree on what type of dancing it should be.   The father had a relapse and used marijuana.   Linda P. stated she never saw Antwoine H. use marijuana or any other illicit substances in the home.

At the time of the study the bedrooms at Linda P's apartment were occupied one by Linda P, the second by Antowoine H. and the third by Aziana H. The testimony at the trial was bedroom one was occupied by Linda P., the second bedroom by Antwoine H. and Aziana H. and the 3rd by a cousin.

The recommendation in the study was that Azia's B.'s motion for reinstatement be granted and Antwoine H.'s motion be denied.   Mr. Craig at the hearing testified that he recommended co-legal guardianship and primary physical residence with Azia B. No one inquired as to what factors changed his recommendation.

DISCUSSION

The applicable standard of review and burdens of proof in this case are set forth in C.P.B. § 35a–16 ¹ and C.G.S § 46b–129(m) ² and the holding of In re Stacy G., 94 Conn.App. 348 (2006) and In re Cameron C., 103 Conn.App. 746 (2007).  “The initial burden is placed on the persons applying for the revocation if commitment allege to and prove that cause for commitment no longer exists ․ If the party challenging the commitment meets the initial burden, the commitment to the third party may then be modified if such change is in the best interest of the child ․ The burden falls on the persons vested with guardianship to prove that it would not be in the best interests of the child to be returned to his or her natural parents.”  In re Cameron C., supra, p.752.

Aziana H. was adjudicated neglected on October 20, 2010.   Guardianship was vested in the paternal great grandmother, Linda P.

Based on the evidence presented, the court finds that neither Azia B. or Antwoine H. has proven that cause for guardianship no longer exists.   All the facts led the court to believe at this time that guardianship of Aziana H. should remain in Linda P. Linda P. has provided a loving and safe home for Aziana.   She is fully aware that the child loves both parents and that both parents love the child.   She has been able to balance the relationship between the child and each parent.   She has permitted overnight visitation with Aziana H. and her mother, Azia B.

The father who lives with Linda P. is looking for a second job.   He is going to rely on Linda P. as the primary resource for Aziana H. and more so if he gets an additional job.   The father states that he and the mother, Azia B. can't agree on anything concerning parenting choices.

The mother states she has a brother but he is not a resource for Aziana H. She would rely on Linda P. as the person to take care of Aziana H. when she is working.   Although she has housing for Aziana H., she would have to pick up Aziana H. after work at night.   The child would be sleeping and after being awakened, transported to the mother's apartment and Aziana H. would be put to sleep again.   The plan was to send Aziana H. to school in the fall.   This would require Aziana H. to get up early in the morning for school.   There was no evidence presented as to how far Azia B. and Linda P. live from each other, the time it would take to transport her back and forth or what mode of transportation would be used.   Except for Tuesday and Thursday nights when the mother has off, the proposed sleeping arrangement would be totally disruptive to the child.

Although there seemed to be some agreement as to joint custody, no one presented any type of plan or schedule to the court for consideration as to the joint caring for and housing for Aziana H. At the end of the hearing, the court had more questions than answers.

Based on the foregoing, the father's and mother's Motions for Restoration of Guardianship are each hereby DENIED.

The court notes that Linda P. has provided Aziana H. with a good home.   Linda P. has done an excellent job in providing each parent with their own time and opportunity to be with the child.   The court hopes this continues toward a goal of restoration in either or both parents.

The court feels that over time, if the mother and father cooperate, that guardianship could be returned to one or both of them.   There would have to be a specific plan for the child that would not be disruptive to a normal sleep pattern and be in her best interest.   If joint custody were an option in the future, then there would have to be more agreement as to parenting goals.

The only concern the court has at present is that Aziana H. does not have her own room as was outlined in the study however, according to the testimony of both the father and Linda P. there seem to be no current concerns.

Burton A. Kaplan

Senior Judge of Superior Court

FOOTNOTES

FN1. C.P.B. § 35a–16 provides “Motions to modify dispositions are dispositional in nature based on the prior adjudication, and the judicial authority shall determine whether a modification is in the best interest of the child by a fair preponderance of the evidence.   Unless filed by the commissioner of the Department of Children and Families, any modification motion to return a child or youth to the custody of the parent without protective supervision shall be treated as motion for revocation of commitment.”.  FN1. C.P.B. § 35a–16 provides “Motions to modify dispositions are dispositional in nature based on the prior adjudication, and the judicial authority shall determine whether a modification is in the best interest of the child by a fair preponderance of the evidence.   Unless filed by the commissioner of the Department of Children and Families, any modification motion to return a child or youth to the custody of the parent without protective supervision shall be treated as motion for revocation of commitment.”

FN2. C.G.S. § 46b–129(m) provides:  “The commissioner, a parent or the child's attorney may file a motion to revoke commitment and, upon a finding that cause for commitment no longer exists, and that such revocation is in the best interest of the child or youth, the court may revoke the commitment of such child or youth.”.  FN2. C.G.S. § 46b–129(m) provides:  “The commissioner, a parent or the child's attorney may file a motion to revoke commitment and, upon a finding that cause for commitment no longer exists, and that such revocation is in the best interest of the child or youth, the court may revoke the commitment of such child or youth.”

Kaplan, Burton A., J.