IN RE: Shya P.1 (2014)

MEMORANDUM OF DECISION CONCERNING RESPONDENT FATHER'S MOTION TO DISMISS

Factual and procedural background

Ashley N. gave birth to Devin P. on February 17, 2007.   Devin's father is David F. On May 14, 2008, Ashley N. gave birth to Shya P. Shya's father is Tony C. On October 13, 2009, the Department of Children and Families (DCF) filed a motion for an order of temporary custody (OTC) of both children.   That motion was granted and subsequently sustained on October 24, 2009.   On November 24, 2009, both children were adjudicated neglected and committed to the custody of the Commissioner of DCF. On June 22, 2010, the paternal grandparents of Devin, Stanley F. and Deborah F., were found suitable and worthy to be guardians of the two children, having been certified for the role of non-relative foster parents for Shya. The disposition was then modified from commitment to DCF to placement with and subsidized guardianship of each child to Devin's paternal grandparents who are the petitioners seeking permanent guardianship of Shya. They were granted permanent guardianship of their grandson, Devin, on November 5, 2013.   Their petition seeking permanent guardianship of both children dated February 18, 2013, gave rise to Tony C.'s objection as to Shya on February 22, 2013, and his oral motion on January 23, 2014, to dismiss addressed in this memorandum of decision.   Previously, on November 29, 2012, mother had filed an application for Reinstatement of Guardianship of both children to herself.   That application was dismissed on April 9, 2013, when mother failed to appear and prosecute her motion and she was thereby defaulted.   She did not appear for the hearing on January 23, 2014, nor did her attorney, and she remains defaulted in that proceeding as well.

The motion for permanent guardianship and the objection thereto as to Shya went on trial to the court on January 23, 2014.   Nine exhibits were agreed upon and received by the court as full exhibits.   The petitioners presented two witnesses who were themselves, (Stanley and Deborah F.) and thereupon rested.   Upon resting their case, Tony C. moved to dismiss the petition for failure to make out a prima facie case based upon Practice Book § 15–8.   It is that motion to dismiss which is the subject matter of this memorandum of decision.   Because the petitioners seek to modify the disposition currently in place, the motion for permanent guardianship is dispositional only.

Issues of law

In order for the petitioners to be successful in their quest for an order vesting permanent guardianship of Shya in them they must establish by clear and convincing evidence that:

At least one of the statutory grounds for termination of parental rights exists;

Adoption of the child is not possible or appropriate;

The child under the age of twelve is either a relative or the proposed permanent guardians are already serving as the permanent legal guardians of at least one of the child's siblings, if any;

The child has resided with the proposed permanent legal guardian for at least one year;

The proposed guardians are suitable and worthy and committed to remaining permanent guardians until the child's attaining the age of majority.2

“The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15–8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it ․ For the court to grant the motion [for judgment of dismissal pursuant to Practice Book § 15–8], it must be of the opinion that the plaintiff has failed to make out a prima facie case.   In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint ․ In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove ․ [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Gambardella v. Apple Health Care, Inc., supra, 86 Conn.App. 846–47.[fn6] Whether the plaintiff has made out a prima facie case is a question of law, over which our review is plenary.  Cadle Co. v. Errato, 71 Conn.App. 447, 456, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002).³

Findings

The petitioners have been found in a prior proceeding involving a half sibling of Shya to be suitable and worthy and are currently serving as permanent legal guardians of Shya's half-sibling, matters of which the court takes judicial notice.   They are committed to remaining permanent legal guardians and assuming this responsibility at least until Shya's majority.   Shya has resided with the petitioners since June 22, 2010.   As just noted, the petitioners are already serving as permanent legal guardians of Shya's half-sibling, Devin.   At issue, then, as it relates to Shya, is whether adoption is not possible or appropriate and whether at least one statutory ground for termination of parental rights exists.   The two grounds claimed by the petitioners upon father's oral motion to dismiss are (1) no ongoing parental relationship and insufficient time to establish one, and (2) abandonment.   In addition thereto, the petitioners claimed in their amended motion for permanent guardianship dated April 25, 2013, the grounds of failure to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child, he could assume a reasonable position in the life of the child.

(This court previously found on November 5, 2013, that adoption of Devin by the petitioners, his grandparents, was not possible or appropriate, but no such finding was made as to Shya and the factual situation as it relates to Shya is different from that of Devin in that the petitioners are not related to Shya in any way and will be considered independently in this memorandum.)

The statutory grounds

1. No ongoing parental relationship and insufficient time to establish one.   Shya was born May 14, 2008, in Rhode Island, and lived with mother while father lived in Bridgeport, CT. Father saw her in the hospital after birth.   Several months after the birth father was remanded to prison and mother resumed her relationship with the father of Devin.⁴  They resided together from that time until Shya was removed by the Department of Children and Families (DCF) on October 13, 2009, when she was one year, five months old.   She was placed that same month with the petitioners and has lived continuously with them until this day.   They are her legal guardians.   She never lived with her biological father and only learned of his existence for the first time in December 2013.   She was unmoved by this gained knowledge.   She has never had contact with him.   Forty-four days before her birth father was arrested with serious drug-related charges and was ultimately incarcerated for an extended period of time.   His criminal record is extensive.⁵  He was released from prison in 2011.   There has been no ongoing parent-child relationship which ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and education needs of the child.   The petitioners have testified, and the court must take as true (under a § 15–8 motion) that to allow further time for the establishment of such a parent-child relationship would be detrimental to the best interest of the child.   Shya has no present memories or feelings for father.   Father's efforts to establish a relationship, as testified to by the petitioners, were minimal both during his incarceration and upon his release.   The court must consider the meager efforts father did attempt in a light most favorable to the petitioners.   Shya is several months shy of age six, has never known of father's existence until two months ago, has never met him, and has not asked to meet him.   Petitioners testified that they feel she should at some time have a relationship with him, but not at the present time.   She should be older and better able to handle it.   The court must accept that logic in a way most favorable to the petitioners.

2. Abandonment. A child has been abandoned by a parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.  “The commonly understood general obligations of parenthood entail these minimum attributes:  (1) express love and affection;  (2) express personal concern for child's health, education, and general wellbeing;  (3) the duty to supply the necessary food, clothing, and medical care;  (4) the duty to provide an adequate domicile;  and (5) the duty to furnish social and religious guidance.”  In re Angelica W., 49 Conn.App. 541, 551 (1998).   The petitioners testified to father's one-time presentation of Christmas gifts in 2009, and one letter together with several text messages concerning a desire by father to set up visitation.   They received no communications from father concerning Shya's health, education, general well-being, and her need for food, clothing, medical care or any such common issues.   They received no financial support from father for Shya. The evidence taken in a light most favorable to the petitioners establishes the argument for abandonment.

3. Failure to rehabilitate.   The petitioners did not pursue testimony related to any non-compliance by father with specific steps which were ordered at the time of the neglect adjudication and that ground is not considered in this memorandum of decision.

Adoption of the child is not possible or appropriate

Although adoption of the child might be possible, and the petitioners testified that were that necessary they would be willing to do it, they feel that the more appropriate avenue for Shya is permanent legal guardianship.   They feel that Shya should enjoy a relationship with her biological father, although at a time somewhat removed from the present and after therapeutic introduction, just as both Devin and Shya should have an ongoing relationship with their mother.   Given that conviction, the court must consider it in the light most favorable to the petitioners as they present it to be in the best interest of the child.

Order

For all of the reasons stated above, the court finds that the petitioners have presented a prima facie case within the constraints of clear and convincing evidence for the creation of a permanent legal guardianship for Shya with the petitioners while taking their evidence in a light most favorable to them, and the motion for dismissal under Practice Book § 15–8 is denied.   Father and child shall be given the opportunity to continue with father presenting his case in chief next, including but not limited to his motion for visitation, followed by the case in chief for the child, and rebuttal case by the petitioners.

The next trial date shall be March 11, 2014, from 10:00 AM to 5:00 PM.

Mack, JTR

FOOTNOTES

FN2. C.G.S. § 46b–129(j)(6)..  FN2. C.G.S. § 46b–129(j)(6).

FN3. Moss v. Foster, 96 Conn.App. 369, 378 (2006)..  FN3. Moss v. Foster, 96 Conn.App. 369, 378 (2006).

FN4. Petitioner's Exhibit # 7..  FN4. Petitioner's Exhibit # 7.

FN5. Petitioners' Exhibit # 2..  FN5. Petitioners' Exhibit # 2.

Mack, Michael A., J.T.R.