IN RE: William Thomas W. (2013)

MEMORANDUM OF DECISION

This case involves an Application for Removal of Guardian.   It was originally filed on June 13, 2012 at the Court of Probate for the Tolland–Mansfield District.   The case was subsequently transferred from that venue to the Northeast Regional Children's Probate Court.   On August 12, 2012, the Honorable Claire C. Twerdy, Judge of Probate, transferred the case to this court, pursuant to the provisions of C.G.S. § 45a–623.

The best interests of two children are at issue.   The subject children are:  William Thomas W., IV (d.o.b. May 13, 2005), and Sierra Nicole W. (d.o.b. November 9, 2006).   Billie Jo P. is the mother of the children.   Their acknowledged father is William Thomas W., III. The parents were never married to each other.

The application was filed by Kandy P., the children's maternal aunt.   Kandy P. only seeks to remove the mother's guardianship rights.   She does not allege that the father should be removed as the children's guardian.   When the application was filed at the Probate Court on June 13, 2012, Kandy P. also requested temporary custody of both children.   Judge Twerdy issued an ex parte order on June 14, 2012 awarding the maternal aunt immediate temporary custody.   Following a hearing held on June 21, 2012, Judge Twerdy granted temporary custody of William Thomas W., IV (who is known as Thomas) and Sierra Nicole W. to Kandy P.¹ The children have remained in their aunt's custody continuously from that date through the present time.

In her application, Kandy P. alleged three grounds for the removal of Billie Jo P.'s guardianship rights.   She claimed:  that the mother had abandoned the children (C.G.S. § 45a–610(2));  that the children had been denied the care and guidance or control necessary for their physical, educational, moral or emotional well-being as the result of acts of parental commission or omission (C.G.S. § 45a–610(3));  and that the children had been neglected or uncared for (C.G.S. § 45a–610(5)).

A contested hearing on the application for removal of guardianship was held before the undersigned at this venue on May 10, 2013, May 13, 2013 and May 16, 2013.   Kandy P. represented herself during the proceeding.   Billie Jo P. was represented by Attorney Susan Newman.   William Thomas W., III was represented by Attorney Kelly Babbitt.   Attorney Frank Twohill served as the lawyer for the two minor children.

FACTUAL FINDINGS

The parents began living with each other after Thomas was conceived.   Billie Jo P. became pregnant with Sierra six or seven months after Thomas was born.   The parents' time together as a couple was troubled and of relatively short duration.   Billie Jo P. told a Department of Children and Families social worker that William Thomas W., III had a drinking problem,² and was minimally involved with the children and her, while they lived as a family.

In early 2007, when Sierra was approximately two-months-old, the parents ended their relationship and separated permanently.   Billie Jo P. relocated with Thomas and Sierra to the home of her mother, Brookie P., in Coventry.   Kandy P. was also living at Brookie P.'s residence.   The children have lived in the maternal grandmother's home continuously from early 2007 through the present date.   Based on the totality of the evidence, the court finds that for approximately five years, the grandmother, mother and aunt lived together for most of the time,³ and shared care-taking responsibilities for the two children.⁴  Although Kandy P. and Brookie P. both allege that Billie Jo P. has problems with drugs and alcohol, the evidence suggested that the three women appropriately co-parented Thomas and Sierra, and were able to function fairly cooperatively as a family unit, during this time.   After his separation from Billie Jo P., William Thomas W., III paid child support and generally visited the children one day each weekend.   However, the father has not been substantially involved with the day-to-day care of the children since early 2007, and he has not sought an increase in the frequency of his contacts with his son and daughter since then.   William Thomas W., III is employed at night as an aerospace parts toolmaker, and says that it would be difficult for him to serve as the children's primary caretaker due to his shift assignment.

The co-parenting arrangement that was established by the three women in 2007 ended abruptly in early June 2012.   At the beginning of that month, Billie Jo P. indicated that she had begun an internet relationship with a man from Indiana a few months earlier.   She announced that the man, Stephen H., was coming to Connecticut to visit her.   Billie Jo P. asked her mother and sister if Stephen H. could stay at the family home.   They refused.   On or about June 4, 2012, after Stephen H. arrived in this state, Billie Jo P. left the grandmother's home and began staying at a hotel with Stephen H. The children remained with Brookie P. and Kandy P. Billie Jo P. initially promised her mother and sister that she would return to Brookie P.'s house twice daily to see Thomas and Sierra off to school in the morning, and to visit the children each evening before they went to bed.   This arrangement lasted for approximately one week.

On or about June 11, 2012, Billie Jo P. married Stephen H., whom she had first met in person a week earlier.   A study prepared by Anne Bradley, a social worker with the Department of Children and Families (DCF), credibly recounts Stephen H.'s criminal history in Indiana.   It includes arrests for misdemeanor public intoxication (two counts);  illegal consumption and possession of marijuana under 30 grams;  criminal mischief and domestic battery;  and operating a motor vehicle while intoxicated.  (See Respondent Father's Exhibit A, p. 3.) The social study also indicated that Stephen H. is the subject of an active arrest warrant in Indiana for failure to appear in court.   Kandy P. testified credibly that neither she, her mother, nor the children were given advance notice of the mother's marriage to Stephen H.

In her sworn affidavit to the Probate Court, Kandy P. alleged that she contacted Billie Jo P. on June 13th to discuss her decision to marry Stephen H., and to inquire about her plans for the children.   According to that affidavit, Billie Jo P. told her sister then that she would be coming that evening to get the children and that Kandy P. and Brookie P. would not see them again.   The affidavit also averred that Billie Jo P. also had a telephone conversation with her mother on June 13th.   It was alleged that Billie Jo P. told her mother during that call that she was taking the children, that the family would not see them again, and that Billie Jo P. wished Brookie P. was dead.⁵  Kandy P. and Brookie P. could have reasonably inferred that if Billie Jo P. removed Thomas and Sierra then as she threatened to do, the children would have lived in the same residence with Stephen H., and would have been prevented from having contact with their aunt and grandmother.   Following these conversations, Kandy P. called DCF and contacted the Probate Court.   As noted, Judge Twerdy issued the ex parte order granting immediate temporary custody of the children to Kandy P. on June 14th, and subsequently sustained that order following the contested evidentiary hearing on June 21st.   At the June 21st hearing, the Probate Court ordered that the mother could have daily visitation with the children at the maternal grandmother's home.

When the mother left her children in early June 2012 to pursue a romantic relationship with Stephen H., she embarked on a continuing course of conduct during which she abrogated parental responsibilities and relegated Thomas and Sierra to the care of others.   Her acts and omissions disrupted the previously viable co-parenting arrangement, and caused turmoil within her family.

Around the time of the Probate Court hearing when Kandy P. was awarded temporary custody of the children, Billie Jo P. and Stephen H. moved into a house that was under construction in Chaplin.   As noted, the Probate Court order provided that the mother could have daily visits with Thomas and Sierra.   During the time that she resided in Chaplin, Billie Jo P. only visited the children approximately once each week.

Sometime during November 2012, Billie Jo P. and Stephen H. left Connecticut and relocated to Indiana.   This occurred shortly after the Superior Court in Rockville ordered Billie Jo P. to pay child support for Thomas and Sierra, and garnished her wages.   The mother testified that one of her reasons for relocating to Indiana was to defeat the child support order and wage execution.   Billie Jo P. remained in Indiana until December 24, 2012.   She did not visit with Thomas and Sierra while she was out of state.   On December 23rd, she contacted her family and asked if they would help her to return to Connecticut.   With assistance from her mother and sister, Billie Jo P. came back to Connecticut on Christmas Eve, and stayed at Brookie P.'s house.   Up until this time, she had been living separately from her son and daughter for approximately six months.

Several days after Christmas in December 2012, Billie Jo P. was admitted at Natchaug Hospital for psychiatric treatment.   This hospitalization followed an incident during which she had been drinking and cut both of her arms.   The mother returned to Brookie P.'s residence two days later following her discharge from Natchaug.   She remained there with her children, the maternal aunt, and the maternal grandmother until approximately three weeks before this hearing commenced on May 10, 2013.   At that time, Billie Jo P. left the family home in Coventry again following an argument with Kandy P., during which she called the police to the residence.⁶  On the date this hearing concluded, Billie Jo P. had been living separately from her children for approximately three weeks.   She had not visited Thomas or Sierra during this time.   She failed to appear for a visit with the children at a Willimantic park that had been scheduled on Mother's Day.

Billie Jo P. now resides in an apartment in Willimantic.   She has obtained employment at a local store, and is again paying child support for Thomas and Sierra.

Billie Jo P. initially returned to Connecticut without Stephen H. Stephen H. came back to Connecticut in January 2013.   He initially stayed at a local homeless shelter, and now lives in the apartment with Billie Jo P. Stephen H. was arrested for trespassing at a local laundromat earlier this year following his return to this state.

Around the time in April when she argued with Kandy P. and left the family residence, Billie Jo P. contacted DCF and filed a complaint against her sister.   The mother alleged that Thomas had informed her that has slept in the same bed with Kandy P., who was naked.   The undersigned was informed at hearing that DCF investigated this complaint, or is in the process of doing so.   DCF has not removed the children from Kandy P. Thomas and Sierra were in her custody when the presentation of evidence ended on May 16, 2013.   Neither Billie Jo P., Kandy P., nor any of the litigant's attorneys offered any other substantive evidence or testimony about this claim at the hearing.   No DCF representatives were called to testify, and no records about the complaint were subpoenaed.   The only evidence received pertaining to this claim was Billie Jo P.'s testimony about what Thomas had allegedly told her.   The court notes that the mother initiated this claim shortly after that she argued with her sister and vacated the family premises.   This was several weeks prior to the commencement of this hearing.   Also, during her testimony on the last day of this proceeding, Billie Jo P. testified that she wanted Thomas and Sierra to continue living at their current residence, because both children are “comfortable” there.

DISCUSSION

“When an application for removal of guardian is transferred to the Superior Court, the Superior Court sits as a Probate Court, and is restricted by the probate court's jurisdictional limitation.”  In re Max V., Docket No. M08–CP09–011407–A, Superior Court for Juvenile Matters, Child Protection Session at Middletown, May 12, 2010 (Olear, J.), citing Carten v. Carten, 153 Conn. 603, 614 (1996).   See also:  Johnnie Garrett's Appeal from Probate, 44 Conn.Sup. 169, 172 (1994).  “The court may only remove a parent as guardian if it finds that one or more of the grounds set forth in General Statute section 45a–610 have been established by clear and convincing evidence.”  In re Max V., id., citing In re Helen B., 50 Conn.App. 818, 827 (1988).

Although perhaps intuitive, the refusal by Brookie P. and Kandy P. to allow Stephen H. into the family home was rational and justified under the circumstances, particularly in light of the facts later exposed about his criminal history, and behavior.   After Stephen H. was denied permission to reside at Brookie P.'s residence, the mother chose to leave her children and live with him.   The mother's subsequent behavior, and threats to summarily remove the children from the home where they had resided since 2007, prompted Kandy P. to seek the order of temporary custody from the Probate Court.

Clear and convincing evidence proved that Billie Jo P. has failed to fulfill significant parental responsibilities for Thomas and Sierra during the past 11 months, and, that as a result, the day-to-day care of the children during this time was provided primarily by Brookie P. and Kandy P. The mother did not visit the children as often as permitted by the Probate Court between mid-June 2012 and November 2012.   After relocating to Indiana in November 2012, she did not see the children for more than a month.   Also, Billie Jo P. has not visited the children during the past three weeks.

The mother failed to pay child support for Thomas and Sierra when she resided in Indiana last November and December.   She could have done so by remaining at her job in Connecticut, and living proximately to Thomas and Sierra.   Credible evidence proved that Billie Jo P. moved to Indiana (and removed herself from her children) in order to defeat the wage garnishment, and avoid the court order that she financially support her children.

Thomas and Sierra have resided continuously in the home of their grandmother and aunt since 2007.   All of the litigants—including the mother—believe that they should continue to reside at Brookie P.'s home.   However, as a result of Billie Jo P.'s choices and her at time erratic behavior, she has disrupted the previously viable co-parenting plan, and has lived separately from her children for more than seven of the past 12 months.   During this time, Billie Jo P. has intermittently demonstrated anger and hostility toward her mother and sister, who serve as the caretakers of her children.   The court finds that it is presently unlikely that she could communicate effectively with them on an on-going basis, or mutually agree with them about major decisions essential for the children's welfare.⁷

The court finds from the foregoing facts that the applicant has proven by clear and convincing evidence that Billie Jo P. abandoned Thomas and Sierra, in the sense that she failed to maintain a reasonable degree of interest, concern and responsibility for each child's welfare.  (C.G.S. § 45a–610(2).)   The court further finds as proven by clear and convincing evidence that the mother denied Thomas and Sierra the care, guidance and control necessary for his or her physical and emotional well-being, as a result of her acts of parental commission or omission, as recounted above.   The court finds that the foregoing acts or deficiencies of Billie Jo P. support the conclusion that she cannot exercise, or should not in the best interests of the children be permitted to exercise, parental rights and duties at this time (C.G.S. § 45a–610(3)).   Finally, the court finds that it was established by clear and convincing proof that the two children were neglected as defined in section 46b–120, because they were abandoned and denied proper care and attention by Billie Jo P. (C.G.S. § 45a–610(5)).

As Judge Leslie Olear noted in a 2010 decision about a similar matter:  “[t]he consequences of the removal of a parent as guardian of a minor child are far from the drastic results that occur when parental rights are terminated ․ Removal of a parent as guardian does not terminate the parent's right to see the child and to be involved in the child's life.   In fact, General Statutes § 45a–612 specifically provides for the visitation rights of a parent removed as guardian.   Moreover, General Statutes § 45a–611 provides for the reinstatement of a parent as guardian of the person of a minor child, if appropriate.”  In re Max V., id., p. 8. Although this court will issue an order below removing Billie Jo P. as the guardian of Thomas and Sierra, it sincerely hopes that the mother will be able to achieve reinstatement of her guardianship in the future.   In order to do so, Billie Jo P. must visit the children as frequently as possible, effectively address the mental health and/or substance abuse problems that led to her hospitalization last December, and demonstrate that she can consistently place the best interests of Thomas and Sierra first by communicating effectively and working cooperatively with the children's current caretakers.   The court will also issue a visitation order below.   The court recommends that Billie Jo P. continue to receive appropriate mental health/substance abuse therapy.   The court also urges the mother, grandmother and aunt to immediately engage again in joint family therapy, in hopes that they could re-establish their prior co-parenting arrangement.⁸

Stephen H. did not participate in this proceeding.   If Billie Jo P. intends to remain married to him, Stephen H. must demonstrate that he is a suitable person to have extensive contacts with the children, and to assume the responsibilities of being their stepfather.   The court strongly recommends that a family therapist or other appropriate professional oversee any initial attempts by Stephen H. to establish such a relationship with Thomas and Sierra, and that all contacts between Stephen H. and the children initially be supervised until said therapist or other professional recommends otherwise.

ORDERS

It is hereby ORDERED that Billie Jo P. is removed as the guardian of William Thomas W., IV and Sierra Nicole W.

There was no application to remove the children's father, William Thomas W., III as their guardian.   By operation of law, he is each child's sole remaining guardian.⁹  However, as noted previously, the father works at night, and it would be difficult for him to assume the custody of the children, due to his shift assignment.   Additionally, William Thomas W., III informed the court that he wants both children to remain in the home where they have resided continuously since 2007.   The father, his counsel, and the attorney for the children have all expressed the desire that Kandy P. be named by the court as the co-guardian of the children.   Billie Jo P. opposes the designation of her sister as co-guardian, but has indicated to the court that it is in the best interests of her son and daughter that they remain in their current residence with Brookie P. and Kandy P.

Pursuant to the provisions of C.G.S. § 45a–613, it is hereby ORDERED that Kandy P. is appointed as the co-guardian of the two children, to serve in such capacity with their father, William Thomas W., III. The court finds that the appointment of co-guardians is required by the facts and circumstances of this case, and is in the best interests of each child.   The court finds that Kandy P. is a suitable and worthy person to serve as the co-guardian of the children.¹⁰

It is also ORDERED that the children's primary residence shall be with Kandy P. The prior court order granting Kandy P. temporary custody of both children is hereby vacated.

Pursuant to the provisions of C.G.S. § 45a–612, this court issues the following orders with respect to visitation with the children by Billie Jo P.:

The mother may visit the children, at the home of Brookie P., at least three times weekly, on days, and at times, mutually agreed upon by the mother and Kandy P. In the discretion of Kandy P., the mother may have such other visitation, including unsupervised visits, community visits, over-night visits, and extended visits, that Kandy P. believes to be in the best interests of each child.   The safety and happiness of each child shall be of paramount concern.   The mother shall not remove either child from the State of Connecticut without the prior approval of Kandy P., or an order by a court of competent jurisdiction.

In the event of future disagreements between the parties concerning the mother's visitation with Thomas and Sierra, it is the intention of this court that such controversy be heard and determined by the Family Relations Session of the Superior Court for the Tolland Judicial District in Rockville, pursuant to a motion for visitation order, or other appropriate motion, that may be filed there, if necessary, by one of the parties.¹¹  It is this court's belief that said Family Relations Session, which has counselors and other resources available for resolving such matters, is best-equipped to assist the parties, in the event that any future disputes arise concerning visitation.

The Clerk of this court is respectfully requested to forward copies of this memorandum of decision, for informational purposes, to the Court of Probate for the Tolland–Mansfield District, the Northeast Regional Children's Probate Court, and DCF Social Worker Anne Bradley.   The clerk of this court shall also issue an appropriate decree reflecting the court's award of co-guardianship to Kandy P.

Dated at Willimantic, Connecticut this 31st day of May 2013

SO ORDERED

Dyer, J.

FOOTNOTES

FN1. The father, William Thomas W., III consented to the order granting Kandy P. temporary custody of both children.   Billie Jo P. did not consent, and the Probate Court granted temporary custody of both children to the maternal aunt after a contested evidentiary hearing that was held on June 21, 2012..  FN1. The father, William Thomas W., III consented to the order granting Kandy P. temporary custody of both children.   Billie Jo P. did not consent, and the Probate Court granted temporary custody of both children to the maternal aunt after a contested evidentiary hearing that was held on June 21, 2012.

FN2. The court found this evidence to be credible.   The father testified during this proceeding that he had been arrested four times for driving while under the influence when he was younger.   There was also credible evidence that on April 26, 1999 (approximately six years prior to the birth of Thomas) William Thomas W., III was convicted of driving under the influence (C.G.S. § 14–227a) and received a six-month suspended sentence and 18 months probation (See Respondent Mother's Exhibit 1A.).   Also, the DCF social study notes that both Kandy P. and Billie Jo P. have expressed concerns about the father's use of alcohol..  FN2. The court found this evidence to be credible.   The father testified during this proceeding that he had been arrested four times for driving while under the influence when he was younger.   There was also credible evidence that on April 26, 1999 (approximately six years prior to the birth of Thomas) William Thomas W., III was convicted of driving under the influence (C.G.S. § 14–227a) and received a six-month suspended sentence and 18 months probation (See Respondent Mother's Exhibit 1A.).   Also, the DCF social study notes that both Kandy P. and Billie Jo P. have expressed concerns about the father's use of alcohol.

FN3. Brookie P. testified that there was a period of time approximately two or three years ago when Kandy P. lived away from Brookie P.'s residence for six or seven months..  FN3. Brookie P. testified that there was a period of time approximately two or three years ago when Kandy P. lived away from Brookie P.'s residence for six or seven months.

FN4. Billie Jo P. testified that she was the primary caretaker of Thomas and Sierra during the time when they lived in Brookie P.'s home.   However, this was contradicted by the credible testimony of both Brookie P. and Kandy P., and by evidence that the mother attended college and worked during some of that time.   The more persuasive evidence supports the finding that the mother, grandmother, and aunt all shared the responsibilities for parenting the children..  FN4. Billie Jo P. testified that she was the primary caretaker of Thomas and Sierra during the time when they lived in Brookie P.'s home.   However, this was contradicted by the credible testimony of both Brookie P. and Kandy P., and by evidence that the mother attended college and worked during some of that time.   The more persuasive evidence supports the finding that the mother, grandmother, and aunt all shared the responsibilities for parenting the children.

FN5. During her testimony, Billie Jo P. denied stating that she would remove the children.   The court did not credit her testimony on this issue..  FN5. During her testimony, Billie Jo P. denied stating that she would remove the children.   The court did not credit her testimony on this issue.

FN6. This was one of several incidents during which the police were summoned to Brookie P.'s home as the result of incidents involving Billie Jo P. and the other maternal relatives..  FN6. This was one of several incidents during which the police were summoned to Brookie P.'s home as the result of incidents involving Billie Jo P. and the other maternal relatives.

FN7. “Guardianship means, guardianship of the person of a minor and includes:  (A) the obligation of care and control;  and (B) the authority to make major decisions affecting the minor's welfare ․” C G.S. § 45a–604(5).   See also:  Johnnie Garrett's Appeal from Probate, 44 Conn.Sup. 169, 170 (1994)..  FN7. “Guardianship means, guardianship of the person of a minor and includes:  (A) the obligation of care and control;  and (B) the authority to make major decisions affecting the minor's welfare ․” C G.S. § 45a–604(5).   See also:  Johnnie Garrett's Appeal from Probate, 44 Conn.Sup. 169, 170 (1994).

FN8. Pursuant to an order issued by the Probate Court the parties participated in family therapy with Dr. Shane Anderson during 2012.   They were not engaged in this therapy at the time of this hearing..  FN8. Pursuant to an order issued by the Probate Court the parties participated in family therapy with Dr. Shane Anderson during 2012.   They were not engaged in this therapy at the time of this hearing.

FN9. See:  C.G.S. § 45a–606..  FN9. See:  C.G.S. § 45a–606.

FN10. The court makes this finding notwithstanding the testimony of Billie Jo P. concerning the claim that the child, Thomas, purportedly made about his aunt several weeks ago.   As noted, with the exception of the mother's testimony about what the child allegedly told her, there was no other evidence presented at hearing about this allegation.   DCF, which reportedly received the mother's report three weeks earlier and initiated an investigation, has not removed the children from Kandy P.'s custody, nor sought to intervene in, or delay, this hearing.   None of the litigants, including but not limited to the child's attorney, subpoenaed witnesses or records related to DCF's investigation of this complaint.   The court has considered the timing of Billie Jo P.'s report to DCF, the evidence pertaining to her hospitalization this past December, and the hostility which she has at times directed towards both Kandy P. and Brookie P. in recent months.   Finally, the court finds it significant that, notwithstanding the allegation, Billie Jo P. testified at hearing that it was in the best interests of both Thomas and Sierra that they continue to remain in their current residence, where they reside with the grandmother and aunt..  FN10. The court makes this finding notwithstanding the testimony of Billie Jo P. concerning the claim that the child, Thomas, purportedly made about his aunt several weeks ago.   As noted, with the exception of the mother's testimony about what the child allegedly told her, there was no other evidence presented at hearing about this allegation.   DCF, which reportedly received the mother's report three weeks earlier and initiated an investigation, has not removed the children from Kandy P.'s custody, nor sought to intervene in, or delay, this hearing.   None of the litigants, including but not limited to the child's attorney, subpoenaed witnesses or records related to DCF's investigation of this complaint.   The court has considered the timing of Billie Jo P.'s report to DCF, the evidence pertaining to her hospitalization this past December, and the hostility which she has at times directed towards both Kandy P. and Brookie P. in recent months.   Finally, the court finds it significant that, notwithstanding the allegation, Billie Jo P. testified at hearing that it was in the best interests of both Thomas and Sierra that they continue to remain in their current residence, where they reside with the grandmother and aunt.

FN11. C.G.S. § 45a–612 specifically provides that the granting of visitation rights to a person who has been removed as guardian by the Probate Court “․ shall not prevent any court of competent jurisdiction from thereafter acting upon such custody of such child ․ and such court may include in its decree an order terminating such visitation rights.”.  FN11. C.G.S. § 45a–612 specifically provides that the granting of visitation rights to a person who has been removed as guardian by the Probate Court “․ shall not prevent any court of competent jurisdiction from thereafter acting upon such custody of such child ․ and such court may include in its decree an order terminating such visitation rights.”

Dyer, Richard W., J.