IN RE: Destiny B.1 (2013)

MEMORANDUM OF DECISION ARTICULATING ORDER GRANTING FATHER'S APPLICATION FOR REINSTATEMENT OF GUARDIANSHIP

The child, Destiny B., was born in June 1999.   The child's mother is Tiffany B. and her father is Randy D. In February 2005, the Commissioner of the Department of Children and Families (“DCF”) instituted this action through a petition alleging that the child was being exposed to statutory neglect and was being uncared for.   The neglect claim was premised on the allegation that the mother, who had physical custody of the child, had been arrested on a felony charge and the father was not a placement resource.   In June 2005, the court accepted the mother's plea of nolo contendere to the claim that the child was uncared for on grounds of homelessness.   The father was allowed to stand silent.   The court entered an order transferring sole custody and guardianship of the child to her maternal grandmother, Marilyn B.

Pending before the court is the father's application or motion for reinstatement of guardianship.   The child is now fourteen years old and she supports the application.   The grandmother opposes the application.   The court ordered DCF to prepare a report regarding the application.   See General Statutes § 46b–129(n).²  DCF filed the report on June 3, 2013.   In this report, DCF recommends that the father's application for reinstatement of guardianship be granted.

On August 8, 2013, an evidentiary hearing was held on the application.   In a decision issued from the bench on September 17, 2013, the court granted the application, with leave for any party to move for articulation.   On September 20, 2013, the court granted the grandmother's motion for articulation.   This memorandum of decision articulates the order granting the father's motion for reinstatement of guardianship.

General Statutes § 46b–129(n) provides that a parent's motion for reinstatement of guardianship may be granted upon the court's “finding that the cause for the removal of guardianship no longer exists, and that reinstatement is in the best interests of the child.”   See n.2. As the movant, the father bears the burden of proving by a fair preponderance of the evidence that the cause for the removal of guardianship no longer exists.   If he meets this burden, the burden then shifts to the grandmother to prove by a fair preponderance of the evidence that the child's reinstatement with the father is not in the child's best interests:  “A natural parent, whose child has been committed to the custody of a third party, is entitled to a hearing to demonstrate that no cause for commitment still exists.   The initial burden is placed on the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists.   If the party challenging the commitment meets that 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.”  (Citation omitted;  internal quotation marks omitted.)  In re Cameron C., 103 Conn.App. 746, 754 (2007).

The father has proven that the cause for the child's removal from his guardianship no longer exists.   There appears to be no dispute on this issue.   The child was removed from the parents' custody on grounds of homelessness.   The evidence establishes that the father now has housing and that this housing has adequate space and furnishings to accommodate the child.   Exhibit A.

The issue more directly in dispute is whether the transfer of guardianship is in the child's best interests.   As the party vested with guardianship and in opposition to the father's motion for reinstatement, the grandmother bears the burden of proving that reinstatement is not in the child's best interests.   In re Cameron C., supra, 103 Conn.App. 754.   She has not met this burden.

The child has resided with the father since March 2013.   The child began to live with the father because of bed bugs in the grandmother's residence.   The child has adjusted well at her father's residence.   She testified that she desires to remain in his custody.   As previously stated, the father's residence provides sufficient space and furnishings to accommodate her.   Although the father has a criminal record, the evidence establishes that he has successfully completed his probation period.   Additionally, he has satisfied the specific steps ordered by this court to facilitate reunification.   As indicated previously, he has maintained stable housing.   He has participated in an eight-week parenting course at Child Guidance.   He has made himself available to home services.   He has no current substance abuse concerns or treatment requirements.   In contrast to the grandmother's testimony that his place of employment was not open when she last observed it, the evidence indicates that the father has been employed for approximately a year as an assistant manager at Dickey BBQ. Exhibit A.

The evidence also indicates that the child has had academic and behavioral problems at school.   The dean of the child's school reports that “the school's experience engaging the legal guardian [the grandmother] has not been productive.”   Exhibit A, p. 7. On the other hand, the dean reports that the father and his fiancée are involved in keeping Destiny focused on earning passing grades by reviewing her homework as well as returning calls ASAP when they are contacted and made aware that an intervention is warranted.”   Exhibit A, p. 11.

As previously stated, the father acquired physical custody of the child in March 2013 because of bed bugs in the grandmother's residence.   At the time of trial, in August 2013, the problems relating to this infestation had not been completely addressed as the child's room was still in disarray and without a bed.   The child testified that she does not feel safe in her grandmother's home.   The evidence indicates that the grandmother has disconcerting traffic in the home and that she lives in a high crime area.³

The grandmother emphasizes that she has had custody of the child since 2005, and during these years she provided for the child with no monetary help from the father.   The grandmother testified that she is the one who encouraged the recent contacts between the father and the child.   Additionally, the evidence indicates that the father may also reside in an area with high crime activity.   When asked why she opposes the father's application for reinstatement, the grandmother emphasized his years of absence, his apparent lack of income and his fiancée's past criminal record.   The court recognizes the commendable efforts that the grandmother has made to provide care and support for the child for more than eight years.   Nevertheless, the clear weight of the evidence supports the conclusion that transfer of the child's custody and guardianship to the father is in the child's best interests.

Therefore, for the foregoing reasons, the father's application for reinstatement of custody and guardianship is hereby granted.

So ordered this 7th day of October 2013.

STEVENS, B.

Presiding Judge

Bridgeport Juvenile Court

FOOTNOTES

FN2. General Statutes § 46b–129(n) provides the following in relevant part:  “If the court has ordered legal guardianship of a child or youth to be vested in a suitable and worthy person pursuant to subsection (j) of this section, the child's or youth's parent or former legal guardian may file a petition to reinstate guardianship of the child or youth in such parent or former legal guardian.   Upon the filing of such a petition, the court may order the Commissioner of Children and Families to investigate the home conditions and needs of the child or youth and the home conditions of the person seeking reinstatement of guardianship, and to make a recommendation to the court ․ Upon finding that the cause for the removal of guardianship no longer exists, and that reinstatement is in the best interests of the child or youth, the court may reinstate the guardianship of the parent or the former legal guardian.   No such petition may be filed more often than once every six months.”.  FN2. General Statutes § 46b–129(n) provides the following in relevant part:  “If the court has ordered legal guardianship of a child or youth to be vested in a suitable and worthy person pursuant to subsection (j) of this section, the child's or youth's parent or former legal guardian may file a petition to reinstate guardianship of the child or youth in such parent or former legal guardian.   Upon the filing of such a petition, the court may order the Commissioner of Children and Families to investigate the home conditions and needs of the child or youth and the home conditions of the person seeking reinstatement of guardianship, and to make a recommendation to the court ․ Upon finding that the cause for the removal of guardianship no longer exists, and that reinstatement is in the best interests of the child or youth, the court may reinstate the guardianship of the parent or the former legal guardian.   No such petition may be filed more often than once every six months.”

FN3. For example, the DCF investigative report notes that Destiny reported that “she no longer desires to live with her maternal grandmother because she has card games at her house on weekends and although nothing has happened to her, sometimes she does not feel safe when her grandmother's friends get loud and excited during the card games.”   Exhibit A, p. 8..  FN3. For example, the DCF investigative report notes that Destiny reported that “she no longer desires to live with her maternal grandmother because she has card games at her house on weekends and although nothing has happened to her, sometimes she does not feel safe when her grandmother's friends get loud and excited during the card games.”   Exhibit A, p. 8.

Stevens, Barry K., J.