In re Zakai F. ( 2021 )

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IN RE ZAKAI F.—CONCURRENCE AND DISSENT
MULLINS, J., with whom KAHN and ECKER, Js., join,
concurring in part and dissenting in part. I agree with
and join part I of the majority opinion, but I respectfully
disagree with part II of the majority opinion.
I
The majority’s decision is based on the premise that,
‘‘[w]hen, as in the present case, there has been no find-
ing of parental unfitness or abuse or neglect, it is inap-
propriate to afford the child’s general interest in safety
equal weight to the shared constitutional interest in
family integrity.’’ From this premise, the majority con-
cludes that the constitutional presumption that guard-
ianship should be reinstated in the parent must be over-
come by clear and convincing evidence that reinstatement
is not in the best interests of the child. I would conclude,
consistent with our prior case law, that children have
independent interests in safety and stability. In re
Juvenile Appeal (83-CD), 189 Conn. 276, 287, 455 A.2d
1313 (1983) (‘‘The child, however, has two distinct and
often contradictory interests. The first is a basic interest
in safety; the second is the important interest . . . in
having a stable family environment.’’ (Emphasis omit-
ted.)). Therefore, it is not only the child’s general inter-
est in safety that is appropriate to consider, but the
important interest of stability must also be considered.
Thus, I fundamentally disagree with the majority’s prem-
ise and conclusion.
I believe that it is not only appropriate, but required,
for a trial court to take into account the interests of
both the parent and the child in family integrity and
the additional interests of the child in safety and stabil-
ity, even when there has been no finding of parental
unfitness. In my view, it does not follow that, in the
absence of findings of parental unfitness or abuse or
neglect, the interests of the parents and of the child
are ipso facto aligned. Indeed, there may be no finding
of parental unfitness; nevertheless, a child may not be
safe or feel safe in that parent’s care.
In a reinstatement proceeding, the child has had
guardianship transferred to another person, either vol-
untarily or involuntarily, for some period of time. Typi-
cally, that child has started to form bonds with his or
her day-to-day caretakers while out of his or her parents’
care. In this very case, at the time the trial court denied
the motion of the respondent, Kristi F., for reinstate-
ment of guardianship, the child had been out of his
parent’s care for approximately five years of his seven
year life. During this time, multiple attempts at reunifi-
cation proved unsuccessful due to the respondent’s
inability to prioritize the child’s emotional and physical
health. It is this period of separation of the family unit
that gives rise to the need to consider the child’s inde-
pendent interests in safety and stability, separate from
the parent’s and the child’s shared right to family integ-
rity. Indeed, the longer the period of separation and the
stronger the bonds the child makes with his or her
caregiver, the more the interest of the child in stability
may diverge from the interests of the parents. I do not
mean to suggest that the parent’s interests are unimport-
ant, only that the child’s interests are also significant
and may diverge from those of the parent during that
period of separation.
It is imperative for the trial judge not to presume that
the interests of the parents and the child align—and thus
the child’s right to safety is somehow less important,
as the majority posits—simply because there is no find-
ing of parental unfitness. Rather, the trial judge should
consider the equally important interests the child has
in safety and stability when determining what disposi-
tion is in the best interests of the child. The constitu-
tional presumption that reinstatement is in the best
interests of the child adequately protects the right to
family integrity. Requiring that presumption to be over-
come by the heightened, clear and convincing evidence
standard does not adequately protect the child’s poten-
tially divergent interests in safety and stability in a rein-
statement proceeding. Therefore, I would conclude
that, combined with the presumption that reinstatement
of guardianship to the parents is in the best interests
of the child, the fair preponderance of the evidence
standard properly balances the interests of the parents
and the child. Accordingly, I would affirm the judgment
of the Appellate Court.
II
Although I generally agree with the facts as presented
in the majority opinion, I summarize the relevant facts
and procedural history here to provide background to
my opinion. Zakai F. was born in early 2011 and resided
with his mother, the respondent, for approximately two
years. In 2013, the respondent and the petitioner, Nikki
F., who is the respondent’s sister and Zakai’s maternal
aunt, agreed that the petitioner would care for Zakai.
In early 2014, the respondent reassumed custody and
care of Zakai. Shortly thereafter, the respondent’s live-
in boyfriend, Montreal C., physically assaulted and seri-
ously injured Zakai. Montreal was ultimately prose-
cuted for the assault. See In re Zakai F., 185 Conn.
App. 752, 756, 198 A.3d 135 (2018).
After Zakai’s assault, the respondent agreed that
Zakai again would stay with the petitioner. About four
or five days later, the respondent requested that the
petitioner return Zakai to her care. The petitioner did
not return Zakai and instead filed a petition for immedi-
ate temporary custody and an application for removal
of guardianship in the Probate Court, alleging that, even
after a restraining order was issued, barring Montreal
from contact with Zakai and prohibiting him from being
at the respondent’s home, Montreal continued to live
at the respondent’s home. The petitioner further alleged
that the respondent had been involved with the Depart-
ment of Children and Families (department) in 2009
because the respondent’s eldest daughter had died from
injuries caused by the daughter’s father. The Probate
Court issued an ex parte order granting the petitioner
immediate temporary custody of Zakai, but the court
did not rule on the petitioner’s motion for removal of
guardianship. As a result, Zakai continued living with
the petitioner.
Subsequently, the case was transferred to the family
division of the Superior Court. On September 29, 2014,
by agreement of the parties, the court ordered that (1)
a guardian ad litem be appointed for Zakai, (2) the
respondent continue to engage in anger management
counseling, therapy, and parenting classes, and (3) the
respondent be afforded supervised visitation with
Zakai. Thereafter, the case was transferred to the juve-
nile division of the Superior Court in New Haven. That
court allowed for unsupervised visits between the
respondent and Zakai and increased the length of Sun-
day visits from two to four hours.
Then, in March, 2016, the attorney for Zakai filed an
ex parte motion to suspend unsupervised visitation.
The attorney for Zakai alleged, as grounds for the
motion, that the respondent and Montreal had been
arrested on felony charges.1 The trial court granted the
ex parte motion, thereby suspending unsupervised visi-
tation.
In September, 2016, prior to a scheduled hearing on
the respondent’s motion to vacate the order of immedi-
ate, temporary custody and the petitioner’s motion to
transfer guardianship, the court accepted and approved
an agreement resolving all outstanding issues. Pursuant
to this agreement, the court transferred guardianship of
Zakai to the petitioner, ordered unsupervised daytime
visits between the respondent and Zakai, and ordered
that, until the protective order was resolved or modi-
fied; see footnote 1 of this opinion; the petitioner would
have a third party present in her home while exchanging
custody of Zakai with the respondent. The stipulation
also required that any further expansions of the visita-
tion schedule, including overnight visits, would be
arranged through family therapy.
Thereafter, in 2017, the respondent filed a motion to
reinstate her guardianship rights to Zakai and one for
overnight visitation. After a hearing, in December, 2017,
the court issued its order and ‘‘elected to hold in abey-
ance any definitive ruling on the motion to reinstate
the respondent’s guardianship rights and instead
ordered that Zakai immediately commence overnight
visits with the respondent. The court further ordered
that the respondent exclusively was to care for Zakai
during the overnight visits and that there was to be no
contact between Zakai and any unrelated male adults.’’
Id., 758.
In making its December, 2017 ruling to commence
overnight visits with the respondent, the trial court
explained: ‘‘Clearly, up until the last [one and one-half
years], [the respondent] has struggled to achieve and
sustain a lifestyle conducive to having Zakai return to
her care. It took her a long time, and some would argue
too long, to disengage from [Montreal]. But she appears
to have permanently done so for [more than one] year
now. The remaining obstacle—one of the remaining
obstacles—that needs to be navigated now is whether
[the respondent’s] choices . . . [including whom she
allows to care] for and to have contact with [Zakai],
are sound and safe choices. . . . The terrible, heart-
breaking death of [the respondent’s] eldest infant
daughter, who died while [the respondent] left [her] in
the . . . care [of the child’s father] and then, subse-
quently, Zakai’s beating by [Montreal], again a caregiver
chosen by [the respondent] when she went to work to
pay the bills. These traumatic, tragic events occurred
due in large part to choices and exercises in judgment
by [the respondent]. Zakai cannot afford to have history
repeat itself. . . . [The respondent] must understand
that the court, in its orders today, is trying to facilitate
the strengthening of the mother-child bond but at the
same time ensure that Zakai remains safe, both physi-
cally and emotionally.’’ (Internal quotation marks omit-
ted.)
Thereafter, the respondent and Zakai began to have
weekend, overnight visits, in addition to Tuesday visits.
The overnight visits initially consisted of one overnight
and then, in January, 2018, the overnight visits extended
from Friday, after school, through midday Sunday.
Less than two months after unsupervised, overnight
visits commenced, on February 2, 2018, counsel for
Zakai filed a motion to suspend overnight visitation. As
grounds for the motion, counsel represented that Zakai
reported that the respondent allowed an unrelated male
to be in the home during Zakai’s overnight visits, in
violation of the explicit terms of the December, 2017
order.2 Counsel for Zakai also represented that Zakai
reported to his therapist that the respondent had hit
him and his sister, that Zakai reported to the petitioner
that the respondent told him not to tell anyone about
a male being in the home during his overnight visits,
and that Zakai stated that he did not want to continue
having overnight visits with the respondent.
On February 15, 2018, the court reconvened the pro-
ceedings to hear testimony and to receive other evi-
dence regarding both the motion filed by the counsel
for Zakai to suspend overnight visitation and the respon-
dent’s June, 2017 motion to reinstate her guardianship
rights. The court heard additional testimony from
numerous witnesses on February 15, February 28, and
March 1, 2018.
On March 1, 2018, the court issued its memorandum
of decision. The trial court found that ‘‘the reasons and
events that prompted the agreed to 2016 transfer of
guardianship have been sufficiently ameliorated. [The
respondent] is capable of providing Zakai with appro-
priate housing, nutrition and clothing, and she is capa-
ble of meeting his educational, medical and physical
safety needs. [The respondent] and Zakai share a loving
parent-child like bond and, when [Zakai] feels he is in
a safe environment, [the respondent] and [Zakai] enjoy
quality time together.’’ (Footnote omitted.) The court
then explained that ‘‘[t]he more daunting issue is
determining what is now in Zakai’s best interests.’’
The court explained that, in December, 2017, ‘‘pro-
gression to overnight visits appeared to be in Zakai’s
best interest[s]. And, although some period of adjust-
ment to spending overnights with [the respondent] may
have been foreseeable, the emotional and physical
debilitation Zakai is now exhibiting is unacceptable.’’
As the majority notes in its opinion: ‘‘[T]he court cred-
ited the testimony of Zakai’s first grade teacher, Zakai’s
therapist, and the petitioner. Each of these witnesses
testified that, on days that Zakai is scheduled to visit
with the respondent, he demonstrates regressive, debili-
tating behavior, and that there has been a dramatic
negative change in his behavior since the commence-
ment of overnight visits with the respondent.’’
The court recognized that, ‘‘[c]ommencing in Febru-
ary, 2014, [the respondent] has remained steadfast in
her efforts to have Zakai return to her care . . . [and
that] [a]ll of [the respondent’s] laudable accomplish-
ments obviously factored heavily into [the] court’s
December, 2017 order to immediately commence [over-
night visits].’’ Nevertheless, the court explained: ‘‘The
difficulty, sadly, is that the court’s December, 2017
orders are subjecting Zakai to unjustifiable and debili-
tating emotional stress. . . . Zakai loves [the peti-
tioner] and [his] cousins, and [the petitioner] is a mother
figure to Zakai and his cousins are like siblings to him.
Zakai acknowledges [the respondent] as his mother,
and there is a parent-child like bond, but it is hampered
by the reality that Zakai does not feel safe and secure
in [the respondent’s] care. Over years of contact and
visits, with the gradual increase in the amount and
degree of contact between [the respondent] and [Zakai]
and [by] reintroducing Zakai to [the respondent’s] home
and the people important to [the respondent], it was
assumed [that] Zakai would achieve an adequate sense
of safety and security when with [the respondent].
Unfortunately, he has not. To the contrary, by increas-
ing Zakai’s time in [the respondent’s] care and having
[overnight visits] in [the respondent’s] home, Zakai feels
less safe. . . . Proverbially speaking, Zakai is scream-
ing for permanency; he wants and needs to know his
one ‘forever’ home.’’ (Footnotes omitted.) The court,
therefore, concluded that it was not in Zakai’s best
interests to return to the respondent’s care and, accord-
ingly, denied the respondent’s motion for reinstatement
of guardianship and granted the motion filed by the
attorney for Zakai to terminate overnight visits.
These facts highlight the divide between my position
and the majority’s position. The fact that there is no
finding of unfitness simply does not mean that the inter-
ests of the respondent and of Zakai are aligned. The
court’s specific finding that Zakai does not feel safe in
the respondent’s care supports the conclusion that their
interests are not aligned. It is the fact that these separate
interests exist that leads to my view that both interests
must be taken into account. I agree with the majority
that the shared interest in family integrity is why there
should be a presumption in favor of reinstatement.
Where I part ways with the majority is over what stan-
dard of proof must be met in order for the nonparent
to rebut the presumption.
III
I agree with the majority that the question of the
appropriate standard of proof to be applied requires a
balancing of the three ‘‘factors identified in [Mathews
v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d
18 (1976)] to determine whether a particular standard of
proof in a particular proceeding satisfies due process.’’
Santosky v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388,
71 L. Ed. 2d 599 (1982). Namely, we must consider ‘‘the
private interests affected by the proceeding; the risk of
error created by the [s]tate’s chosen procedure; and
the countervailing governmental interest supporting
[the] use of the challenged procedure.’’ Id.A
Like the majority, I first consider the private interests
affected by the proceeding. In a proceeding concerning
the reinstatement of guardianship, there are two private
interests at stake—those of the parent and those of the
child. Both must be accounted for in deciding which
standard of proof should apply.
On the parental side, it is well established that ‘‘the
interest of parents in the care, custody, and control of
their children . . . is perhaps the oldest of the funda-
mental liberty interests recognized by [the United States
Supreme Court].’’ Troxel v. Granville, 530 U.S. 57, 65,
120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Indeed, it is
this fundamental right of parents to the care, custody
and control of their children that the majority and I
recognized by adopting the presumption that reinstate-
ment of guardianship is in the best interests of the child.
‘‘It must be stressed, however, that the right to family
integrity is not a right of the parents alone, but encom-
passes the reciprocal rights of both [the] parents and
[the] children. It is the interest of the parent in the
companionship, care, custody and management of his
or her children . . . and of the children in not being
dislocated from the emotional attachments that derive
from the intimacy of daily association . . . with the
parent . . . .’’ (Citations omitted; internal quotation
marks omitted.) In re Juvenile Appeal (83-CD), supra,
189 Conn. 284; see also Smith v. Organization of Foster
Families for Equality & Reform, 431 U.S. 816, 844, 97
S. Ct. 2094, 53 L. Ed. 2d 14 (1977) (‘‘the importance of
the familial relationship, to the individuals involved and
to the society, stems from the emotional attachments
that derive from the intimacy of daily association, and
from the role it plays in ‘promot[ing] a way of life’
through the instruction of children’’).
On the child’s side, more specifically, this court has
explained that ‘‘[t]he child . . . has two distinct and
often contradictory interests. The first is a basic interest
in safety; the second is the important interest . . . in
having a stable family environment.’’ (Emphasis omit-
ted.) In re Juvenile Appeal (83-CD), supra, 189 Conn.
287.3 If the family is intact, a child’s interest in having
a stable family environment often aligns with a parent’s
right to the care, custody and control of his or her child.
Once a family is not intact, however, as is the case in
a reinstatement proceeding, the parent’s right to family
integrity and the child’s right to stability are not always
or necessarily aligned.
The very nature of a proceeding for reinstatement of
guardianship necessarily involves a situation in which
a parent has not been the primary caretaker for the
child for some period of time. Often times, as in the
present case, the child has been living outside of his
or her parent’s care for a lengthy period of time. It is,
therefore, likely that, during that period of time, the
child has established emotional connections and bonds
with the individual who has been providing daily care
to the child and to whom guardianship was transferred.
It is also likely that the longer the child is apart from
his or her parent, the more that his or her interests may
diverge from that of the parent. As the United States
Supreme Court has explained, ‘‘[n]o one would seri-
ously dispute that a deeply loving and interdependent
relationship between an adult and a child in his or
her care may exist even in the absence of [a] blood
relationship.’’ Smith v. Organization of Foster Fami-
lies for Equality & Reform, supra, 431 U.S. 844; see
also Roth v. Weston, 259 Conn. 202, 225, 789 A.2d 431(2002) (‘‘[w]e can envision circumstances in which a
nonparent and a child have developed such substantial
emotional ties that the denial of visitation could cause
serious and immediate harm to that child’’).
My position should not be understood as minimizing
parental rights. Indeed, I agree with the majority that
the presumption that reinstatement of guardianship is
in the best interests of the child is warranted precisely
because of the importance of parental rights and family
integrity. I recognize, however, that this court has pre-
viously explained that, although ‘‘the rights of parents
qua parents to the custody of their children is an
important principle that has constitutional dimensions
. . . we recognize that even parental rights are not
absolute. We must reject the claim of the so-called
‘parental rights’ theory under which ‘the parent has
rights superior to all others except when he is proved
unfit.’ H. Clark, Law of Domestic Relations [(1968)
§ 17.5, p. 591].’’ (Citations omitted.) In re Juvenile
Appeal (Anonymous), 177 Conn. 648, 661, 420 A.2d 875(1979). This court has also explained: ‘‘If, for example,
there has been an unusually protracted period of separa-
tion between [the] parent and [the] child, even a fit
parent may possibly be found to have contributed to
or acquiesced in a situation in which custody must be
yielded to another.’’ Id.‘‘It is undisputed that children require secure, stable,
long-term, continuous relationships with their parents
or [other caretakers]. There is little that can be as detri-
mental to a child’s sound development as uncertainty
over whether he is to remain in his current ‘home’
. . . especially when such uncertainty is prolonged.’’
Lehman ex rel. Lehman v. Children’s Services Agency,
458 U.S. 502, 513–14, 102 S. Ct. 3231, 73 L. Ed. 2d 928(1982). Relying on this principle, the Supreme Court of
California explained: ‘‘The child has a liberty [interest]
. . . in a normal family home . . . with his parents if
possible . . . or at least in a home that is stable . . . .
This concern has been characterized as important . . .
and even compelling . . . .’’ (Citations omitted; inter-
nal quotation marks omitted.) In re Sade C., 13 Cal. 4th
952, 988, 920 P.2d 716, 55 Cal. Rptr. 2d 771 (1996),
cert. denied sub nom. Gregory C. v. Dept. of Children’s
Services, 519 U.S. 1081, 117 S. Ct. 747, 136 L. Ed. 2d
685 (1997).
Notwithstanding the foregoing recognition by this
court and other courts that a parent’s rights are not
absolute, especially when there has been a protracted
period of separation, the majority concludes that the
child’s interests should not be given equal weight to
the parent’s interest in family integrity. This view
neglects the perspective of the child and the child’s
experience during the separation. Instead, I rely on the
principle that this court has long adhered to, namely,
‘‘that parents have no natural right to the custody of
their children that can prevail over a disposition [a]ffect-
ing the child’s best interests . . . .’’ (Citations omitted.)
In re Juvenile Appeal (Anonymous), supra, 177
Conn. 659–60.
The facts of the present case demonstrate why recog-
nition of the child’s independent right to safety and
stability in the emotional attachments that the child
has formed through daily association is essential in the
context of reinstatement of guardianship. Here, Zakai,
who was only seven years old when the trial court
denied the respondent’s motion for reinstatement of
guardianship, had been in the care of the petitioner for
approximately five years. The trial court found that
Zakai viewed the petitioner as a mother figure and
viewed the cousins with whom he lived as siblings. The
trial court found that ‘‘to abruptly remove [Zakai] from
[the petitioner’s] care and home . . . would be cruel,
[and would] inflict devastating loss and pain on Zakai
. . . .’’4
I would conclude that the preponderance of the evi-
dence standard allows a trial court, when faced with a
motion for reinstatement of guardianship under General
Statutes § 45a-611,5 to more fairly recognize the rights
of the child and to give those rights the appropriate
consideration in determining best interests. See In re
Juvenile Appeal (83-CD), supra, 189 Conn. 298–99 (rec-
ognizing that right of parents to family integrity and
child’s interests in family integrity and safety are ‘‘in
relative equipoise’’ in temporary custody proceedings).
Having established that the rights of the parent and
the child are at stake in a proceeding to reinstate guard-
ianship, I must also consider the permanency of the
loss threatened by the proceeding. I recognize that the
denial of a motion for reinstatement of guardianship
deprives the parent, for the duration of the guardian-
ship, of the fundamental right to ‘‘the companionship,
care, custody, and management of his or her children
. . . .’’ Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct.
1208, 31 L. Ed. 2d 551 (1972). This deprivation is by no
means insignificant. Unlike a petition for termination of
parental rights, however, when the clear and convincing
evidence standard applies, and the ‘‘[s]tate has sought
not simply to infringe upon [the parents’ rights to their
child], but to end it,’’ failure to reinstate guardianship
is not permanent. Lassiter v. Dept. of Social Services,
452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981);
see also Santosky v. Kramer, supra, 455 U.S. 759 (‘‘[f]ew
forms of state action are both so severe and so irrevers-
ible’’ as termination of parental rights).
Indeed, an order temporarily removing a parent as
guardian under General Statutes § 45a-610 or by stipu-
lated agreement, as in the present case, is neither final
nor irrevocable. Instead, it is reviewable upon petition
by the parent for reinstatement of guardianship pursu-
ant to § 45a-611.6 That is precisely what happened here;
a procedure that would have been unavailable if the
parent’s rights had been terminated. Moreover, there
are no express restrictions in § 45a-611 limiting how
often a parent may petition for reinstatement. Thus, the
denial of the motion to reinstate guardianship does not
terminate a parent’s parental rights; nor does it preclude
the parent from filing another motion to reinstate in
the future.
This court has repeatedly explained that a preponder-
ance of the evidence standard is acceptable in nonper-
manent custody proceedings. For example, this court
has ‘‘concluded that a fair preponderance of the evi-
dence is the [correct] standard of proof for a neglect
petition because any deprivation of rights [at that stage]
is reviewable and nonpermanent and, thus, warrants
a slightly less exacting standard of proof.’’ (Internal
quotation marks omitted.) In re Shamika F., 256 Conn.
383, 401 n.22, 773 A.2d 347 (2001).
In a similar context, this court also has explained
that an award of temporary custody ‘‘represents a lesser
intrusion into familial relationships than does the termi-
nation of parental rights because it does not result in
a final and irrevocable severance of parental rights or
‘a unique kind of deprivation’ that forces parents to
confront the state in a termination proceeding.’’ Fish
v. Fish, 285 Conn. 24, 72, 939 A.2d 1040 (2008); see
also In re Juvenile Appeal (83-CD), supra, 189 Conn.
299–300 (concluding that fair preponderance of evi-
dence standard was appropriate because, in part, orders
contemplated by abuse and neglect custody proceed-
ings are reviewable upon petition for revocation of cus-
tody, and, thus, there is lesser deprivation of parent’s
rights than in termination proceeding).
The majority cites to a number of cases in which the
clear and convincing standard was used in civil cases
and concludes that ‘‘[i]t would strain rationality if a
parent could lose her constitutional right to parent her
child by a mere preponderance of the evidence when
a party must prove fraud for the purpose of recovering
monetary damages, or a lawyer’s ethical lapse—claims
certainly less weighty than the fundamental right to
parent a child—by a heightened, clear and convincing
standard.’’ I disagree.
First, because the denial of reinstatement of guard-
ianship is not permanent, a parent’s rights are not lost.
Indeed, as I explained previously in this opinion, orders
of temporary custody and neglect petitions involve tak-
ing a child out of a parent’s care, and the preponderance
of evidence standard is used, not the clear and convinc-
ing evidence standard. Second, the presumption that
reinstatement is in the best interests of the child is not
insignificant. It is a presumption that does not exist in
any of the civil cases to which the majority points.
Third, and perhaps most significant, the child’s interests
in and right to safety and stability makes the majority’s
analogy to other civil cases that apply the clear and
convincing standard an inept comparison. If the child’s
interests were not appropriate to consider, when, as in
the present case, there has been no finding of parental
unfitness, I might agree with the majority that the clear
and convincing evidence standard should apply. How-
ever, in my view, the child’s interests are undoubtedly
an important consideration, even when the parent seek-
ing reinstatement has not been deemed unfit. Thus, the
preponderance of the evidence standard, which allows
the court to more fairly consider the child’s separate
right to safety and stability in the day-to-day relation-
ships he or she has formed, particularly after a pro-
tracted period of separation from the parent, is the
appropriate standard.
In sum, a reinstatement of guardianship proceeding
is a situation in which the guardianship of the child
already has been vested in someone other than the
parent for a period of time. Given the potentially diverg-
ing private interests of both the parent and the child
that are at stake, and the nonpermanent nature of the
deprivation that occurs in a reinstatement proceeding,
I would conclude that this factor weighs in favor of a
conclusion that proof by a preponderance of the evi-
dence is the appropriate standard.
B
I next consider the second factor in the Eldridge
balancing test. Ultimately, the question is whether the
fair preponderance standard fairly allocates the risk of
an erroneous finding regarding the child’s best interests
between the parties whose interests are at stake—the
parent and the child. See Santosky v. Kramer, supra,455 U.S. 761.
As I explained in part I of this opinion, I would con-
clude that both the parent and the child have compelling
and sometimes diverging interests to be protected in a
proceeding to reinstate guardianship. In considering
whether a fair preponderance of the evidence standard
fairly allocates the risks, I am mindful that the majority
concludes that a parent is entitled to a constitutional
presumption that reinstatement of guardianship to the
parent is in the best interests of the child. Thus, the
presumption and the resulting burden shift to the party
opposing reinstatement already recognizes the par-
ent’s rights.
The majority goes even further in protecting the par-
ent’s rights, equating the interests of the respondent in
the present case with that of a ‘‘fit parent.’’ I disagree
that the concept of a ‘‘fit parent’’ is applicable to the
present case. The cases in which we have recognized
the concept of a ‘‘fit parent’’ involve intact families in
which the parent had custody and guardianship of the
child but was trying to defend the intact family against
action by an outside party.
For instance, in Roth v. Weston, supra, 259 Conn. 202,
a father who had custody and guardianship of his minor
children appealed from the judgment of the trial court
granting visitation to the children’s maternal grand-
mother and aunt, against his wishes. See id., 204–206.
This court concluded that visitation over the objection
of a fit parent may be allowed only when a third party
can demonstrate ‘‘that the parent’s decision [denying]
visitation will cause the child to suffer real and substan-
tial emotional harm . . . provided the petitioner has
established a parent-like relationship with the child.’’
Id., 226.
Roth dealt with a fit parent in an intact family. The
calculus is different when we are dealing with a family
that is not intact. As noted previously, this court has
stated that, when there is a protracted period of separa-
tion, ‘‘even a fit parent may possibly be found to have
contributed to or acquiesced in a situation in which
custody must be yielded to another.’’ In re Juvenile
Appeal (Anonymous), supra, 177 Conn. 661. Thus, I
would conclude that, although a court will consider the
fitness of the parent in determining whether reinstate-
ment is in the best interests of the child, the concept
of a fit parent insofar as it presumes that the rights of
the child and parent are aligned is not applicable in
reinstatement of guardianship proceedings.
The California Court of Appeal rejected a similar
claim regarding parental fitness, explaining: ‘‘[A] par-
ent’s constitutional right against judicial interference
with the parent’s day-to-day child rearing decisions
applies to a fit parent who has custody of the child.
Here, the parents did not have custody of the minor; a
guardianship had been established, and the guardians
had provided the minor with day-to-day custody and
care for several years. Because the parents were not
participating in the day-to-day parenting of the minor,
they were not entitled to the constitutional protection
afforded to parents acting in that role. The test for
determining whether to terminate the guardianship was
the best interest of the child. Substantial evidence sup-
ports the trial court’s decision that to terminate the
guardianship would have been detrimental to the minor
and, thus, not in her best interest.’’ Guardianship of
L.V., 136 Cal. App. 4th 481, 484, 38 Cal. Rptr. 3d 894(2006).
This court has also long recognized that the rights
of a fit parent are not absolute. ‘‘It is well established
as a general rule that the welfare and best interests of
the child are controlling elements in the determination
of all disputes as to the custody; and the statutes recog-
nizing a right to the custody of the child in either the
father or [the] mother must stand aside [when] the
recognition of such a right would materially interfere
with the paramount right of the child to have [his or
her] welfare considered and conserved by the court.
The welfare of the child under the [foregoing] rule may
require that [his or her] custody be denied the parent
and awarded to others.’’ (Internal quotation marks omit-
ted.) In re Appeal of Kindis, 162 Conn. 239, 242–43,
294 A.2d 316 (1972).
‘‘Determining the best interest of the minor does not
necessarily require a finding that the parent is unfit.’’
In re Guardianship of Barros, 701 N.W.2d 402, 408
(N.D. 2005), overruled on other grounds by In re G.L.,
915 N.W.2d 685 (N.D. 2018). Of course, this makes sense,
and the present case is nearly a paradigmatic example
of why. Here, although there was no finding that the
respondent was unfit, the trial court made findings on
the basis of the evidence that ‘‘Zakai acknowledges [the
respondent] as his mother, and there is a parent-child
like bond, but it is hampered by the reality that Zakai
does not feel safe and secure in [the respondent’s] care.’’
(Footnote omitted.) The trial court also found that Zakai
was being subjected to ‘‘unjustifiable and debilitating
emotional stress’’ with increased overnight visitations
with the respondent. Thus, notwithstanding the fitness
of the parent, in the best interests analysis, we must
account for the rights of the child, lest we risk subjecting
children, like Zakai, to ‘‘unjustifiable and debilitating
emotional stress.’’
Indeed, the statutory framework established by the
legislature in § 45a-611 demonstrates that the legisla-
ture realized that, even if a parent has resolved the
issues that caused guardianship to be placed with
another individual, that does not end the inquiry. The
court nevertheless must still determine ultimately
whether reinstatement is in the best interests of the
child. See General Statutes § 45a-611 (b). In doing so,
our courts cannot ignore the mandates of the statute
and our prior case law, which require consideration of
the rights of the child.
The majority also relies on the fact that the transfer
of guardianship in the present case was voluntary and,
therefore, that we should require a higher standard of
proof to rebut the presumption that reinstatement of
guardianship is in the best interests of the child. I dis-
agree. The statutory scheme of § 45a-611 does not pro-
vide for one standard of proof to be used when a transfer
of guardianship is voluntary and another standard of
proof to be used when a transfer of guardianship is not
voluntary. To the contrary, the legislature adopted one
statutory scheme, regardless of whether the transfer of
guardianship was voluntary or involuntary.7 That statu-
tory scheme provides that guardianship should be rein-
stated only if the parent has ameliorated the reasons
that caused the transfer of guardianship and if rein-
statement of guardianship is in the best interests of the
child. See General Statutes § 45a-611 (b). Accordingly,
I would not adopt a heightened standard of proof for
§ 45a-611 based on the fact that the respondent in the
present case agreed to the transfer of guardianship.
C
Finally, I consider ‘‘the [g]overnment’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.’’ Mathews v.
Eldridge, supra, 424 U.S. 335. This court previously
has recognized the state’s ‘‘continuing parens patriae
interest . . . in the [well-being] of children . . . .’’ In
re Juvenile Appeal (83-DE), 190 Conn. 310, 318–19, 460
A.2d 1277 (1983).
Adopting a presumption in favor of reinstating guard-
ianship rights to the parent while allowing the presump-
tion to be rebutted by a preponderance of the evidence
serves to strengthen the family while also protecting
children. The presumption the majority adopts in part
I of its opinion operates to shift the burden of produc-
tion and persuasion to the nonmoving party once a
parent has demonstrated that the reasons for transfer
of guardianship have been ameliorated. This burden
shift is a significant procedural protection for parents. If
we were to adopt the presumption in favor of reinstating
guardianship rights to the parent while allowing the
presumption to be rebutted only by clear and convinc-
ing evidence—the most exacting civil standard of
proof—it would unduly favor the rights of the parent
over the rights of the child. This court has explained:
‘‘Where two important interests affected by a proceed-
ing are in relative equipoise, as they are in [a temporary
custody proceeding], a higher standard of proof would
necessarily indicate a preference for protection of one
interest over the other. . . . We see no reason to make
such a value determination . . . .’’ (Citation omitted.)
In re Juvenile Appeal (83-CD), supra, 189 Conn. 298–
99.
A review of case law from other jurisdictions reveals
that other courts have also determined that a prepon-
derance of the evidence is the correct standard to be
applied to rebut a presumption in favor of reinstatement
of guardianship. Indeed, the Colorado Supreme Court
explained: ‘‘We are persuaded . . . that the Troxel [v.
Granville, supra, 530 U.S. 57] presumption and the
court’s statutory role in considering what is in the
child’s best interests can be accommodated through
the guardian bearing the burden of proof by a prepon-
derance of the evidence.’’ In re D.I.S., 249 P.3d 775,
786 (Colo. 2011); see also In re Guardianship of David
C., 10 A.3d 684, 686 (Me. 2010) (‘‘although a parent
seeking to terminate a guardianship in order to regain
custody bears the burden of proving that termination
is in his or her child’s best interest . . . the party
opposing the termination of the guardianship bears the
burden of proving, by a preponderance of the evidence,
that the parent seeking to terminate the guardianship
is currently unfit to regain custody of the child’’); In re
Guardianship of Barros, supra, 701 N.W.2d 409 (con-
cluding that ‘‘evidentiary burden placed on the nonpar-
ent . . . is a preponderance of the evidence’’ in termi-
nation of guardianship proceeding).8
The preponderance of the evidence standard ensures
that the proceeding is conducted fairly by giving suffi-
cient weight to the child’s interests and by evenly allo-
cating the risk of an erroneous determination by balanc-
ing the presumption that reinstatement is in the best
interests of the child with a lower standard of proof to
overcome the presumption. The standard also appropri-
ately reflects the fact that the threatened loss is not
permanent. There is no indication that the fair prepon-
derance standard would increase the fiscal burden on
the state in light of the fact that courts in this state are
already familiar with the fair preponderance standard
in family law cases.
I also disagree with the position of the respondent
and the majority that allowing a party to rebut the
presumption that reinstatement of guardianship to the
parent is in the best interests of the child by a prepon-
derance of the evidence does not sufficiently protect
the presumption. As Justice Borden explained in his
concurring opinion in Ireland v. Ireland, 246 Conn. 413,
717 A.2d 676 (1998), applying a preponderance of the
evidence standard is sufficient in a burden shifting
scheme. See id., 441–42 (Borden, J., concurring). In
responding to criticism that ‘‘the burden allocation
scheme [adopted in that case] will be dispositive only
in those relatively rare cases in which the evidence
adduced regarding the best interests of the child with
respect to relocation is in equipoise’’; (internal quota-
tion marks omitted) id., 441 (Borden, J., concurring);
Justice Borden explained that ‘‘the emphasis on that
truism unduly minimizes the other, significant aspects
of the allocation of a burden of proof. In addition to
determining when the allocation will be dispositive, it
also informs the parties of what precisely they have to
prove. Furthermore, it provides a structure for the trial
court regarding how to think about the case as it hears
the evidence.’’ (Emphasis omitted.) Id. Justice Borden
further explained that, ‘‘[m]ost fundamentally, however,
by the law establishing a burden of proof on a particular
issue, it establishes what the law considers to be the
presumed outcome of a particular type of case, and
states the law’s position on what is necessary to change
that outcome. This process implicitly expresses the
societal values involved in the particular type of litiga-
tion in question.’’ Id., 442 (Borden, J., concurring).
Similarly, I would conclude that adopting a presump-
tion that reinstatement of guardianship is in the best
interests of the child and allowing that presumption
to be rebutted by a preponderance of the evidence
appropriately expresses the societal values involved.
Specifically, it demonstrates that society believes that
a child’s best interests are usually served by reinstate-
ment of guardianship to the parent but allows that pre-
sumption to be rebutted when a preponderance of the
evidence demonstrates that reinstatement of guardian-
ship is not in the best interests of the child. Providing
the parent with both the presumption and the clear
and convincing standard focuses on the parent’s rights
alone. On the other hand, a preponderance of the evi-
dence standard fairly balances the value that society
places on allowing families to remain intact with the
interest of stability for a child whose guardianship has
been placed in another individual for a period of time.
After evaluating each of the factors in the Eldridge
balancing test, I would conclude that proof by a fair
preponderance of the evidence is the correct standard
to be applied in reinstatement of guardianship proceed-
ings under § 45a-611. This standard most appropriately
balances the issues involved in a reinstatement proceed-
ing.
In the present case, the trial court correctly applied
the fair preponderance of the evidence standard. On
the basis of the evidence presented by the petitioner,
the trial court found that, ‘‘by increasing Zakai’s time
in [the respondent’s] care and having [overnight visits]
in [the respondent’s] home, Zakai feels less safe.’’ The
trial court further found that, after it increased over-
night visitation, ‘‘the emotional and physical debilitation
Zakai is now exhibiting is unacceptable.’’ Finally, the
court found that removing Zakai from the petitioner,
with whom he has bonded, would be cruel and would
inflict debilitating pain on him.
Accordingly, the trial court concluded that it was not
in Zakai’s best interests to return to the respondent’s
care. On the basis of these findings, I would agree with
the trial court that the petitioner proved by a preponder-
ance of the evidence that reinstatement of guardianship
to the respondent was not in Zakai’s best interests. I
would agree with the Appellate Court that the respon-
dent has failed to prove a constitutional violation and,
accordingly, has not satisfied the third prong of State
v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015).
I would, therefore, affirm the judgment of the Appel-
late Court.
1
The respondent was also arrested in 2014 and charged with threatening
and breach of the peace for an incident at a public park involving Zakai’s
maternal uncle and the petitioner. A criminal protective order was issued,
barring any contact between the respondent and the petitioner.
2
The majority relies on the fact that, at the time that the trial court issued
its order in December, 2017, the trial court found that the respondent had
ceased contact with Montreal for more than one year. Although I agree that
the trial court made that finding in December, 2017, I disagree with the
majority’s implication that this was a fact in favor of reinstating guardianship.
Montreal was charged with assaulting Zakai in 2014, and the conditions
for visitation were that he not be at the house while Zakai was visiting.
Nevertheless, the respondent allowed Montreal to be at the house during
Zakai’s visits and did not cease contact with him until March, 2016, approxi-
mately two years later. Therefore, the respondent continued having contact
with Montreal for more than two years after he was charged with assaulting
Zakai. The majority fails to note that, after making this observation, the
court also found that ‘‘one of the remaining obstacles’’ was the respondent’s
choices, particularly as it relates to who cares for and has contact with
Zakai. Instead of being a fact that weighs in favor of the respondent’s
reinstatement as guardian, as the majority posits, I would conclude that this
fact demonstrates the respondent’s difficulty in making decisions that are
in the best interests of Zakai. In fact, only approximately two months after
being granted overnight visitation, the respondent had another unrelated
male in her home in direct violation of the visitation order.
3
The majority cites to In re Juvenile Appeal (83-CD), supra, 189 Conn.
287–88, and provides a parenthetical stating that ‘‘only when ‘serious physical
illness or serious physical injury’ or ‘immediate physical danger’ is present
does ‘the child’s interest[s] no longer [coincide] with [those] of the parent,
thereby diminishing the magnitude of the parent’s right to family integrity
. . . and therefore the state’s intervention as parens patriae to protect the
child becomes so necessary that it can be considered paramount’ ’’ This
misconstrues this court’s conclusion in In re Juvenile Appeal (83-CD). The
portion of the opinion to which the majority cites and quotes is a discussion
of the statutory provision for summary temporary custody by the department
under then General Statutes § 17a-38 (e). This court explained that, in the
context of a statute that allows the department to take a child who lives
with his or her parents into custody without a court order, ‘‘[i]ntervention
is permitted only where ‘serious physical illness or serious physical injury’
is found or where ‘immediate physical danger’ is present. It is at this point
that the child’s interest no longer coincides with that of the parent, thereby
diminishing the magnitude of the parent’s right to family integrity . . . and
therefore the state’s intervention as parens patriae to protect the child
becomes so necessary that it can be considered paramount.’’ (Citation omit-
ted.) In re Juvenile Appeal (83-CD), supra, 287–88.
To the extent that the majority suggests that ‘‘serious physical illness,’’
‘‘serious physical injury’’ and ‘‘immediate physical danger’’ are some of the
reasons why the interests of the child and the parent would diverge, I agree.
These are certainly not the only circumstances under which those interests
may diverge, and I do not believe In re Juvenile Appeal (83-CD) can be
read that broadly. The majority tries to expand the court’s comment on
§ 17a-38 (e) to be a statement that a child’s interest can never diverge from
the parent’s interest in family integrity unless there is ‘‘serious physical
illness or serious physical injury’’ or ‘‘immediate physical danger.’’ That is
simply not the issue that this court decided in In re Juvenile Appeal (83-
CD). That is the standard for determining whether the department can
remove a child under an order of temporary custody. However, ‘‘serious
physical illness,’’ ‘‘serious physical injury’’ and ‘‘immediate physical danger’’
are certainly not the only reasons why the interests of the child and the
parent may diverge. I need look no further than the circumstances of the
present case, in which the child has been out of the respondent’s care for
the vast majority of his young life and feels unsafe in her care.
4
The majority asserts that the heightened, clear and convincing standard
is required in the present case because ‘‘[r]einstatement of guardianship
proceedings employ the best interests of the child analysis . . . which
leaves the reinstatement determination unusually open to the subjective
assessment of the trial judge.’’ (Citation omitted.) It is not clear to me how
the clear and convincing standard counteracts the subjective assessments
of the judge any more or less than the preponderance of the evidence
standard. In any event, a trial court’s determination of the best interests
of the child is subject to review and must be sufficiently supported by
factual findings.
5
Although § 45a-611 (b) was the subject of technical amendments in 2018;
see Public Acts 2018, No. 18-45, § 9; those amendments have no bearing on
the merits of this appeal. In the interest of simplicity, I refer to the current
revision of the statute.
6
By contrast, a parent may be permanently removed as guardian pursuant
to General Statutes § 45a-616a. If a parent is removed pursuant to § 45a-616a,
§ 45a-611 (d) provides that the parent may not petition for reinstatement
of guardianship rights. In light of the permanent nature contemplated by
those proceedings, my conclusions and analysis in the present case are not
applicable to proceedings originating under § 45a-616a.
7
The facts of this case demonstrate why having a different standard for
voluntary agreements to remove guardianship versus involuntary removal
of guardianship would prove difficult. In the present case, although the
petitioner and the respondent ultimately entered into an agreement to
remove guardianship from the respondent and transfer it to the petitioner,
the agreement came only after a lengthy and difficult, contested process.
A review of the evidence reveals that, had the respondent not agreed to
transfer guardianship, the court likely would have found that the conditions
for removal of guardianship under § 45a-610 had been proven.
8
I acknowledge that there are cases that the majority points to in which
some other states have applied the clear and convincing standard. See part
II C of the majority opinion. Given that our legislature has expressed its
intention that the best interests of the child be paramount; see General
Statutes § 45a-605 (a) (‘‘[t]he provisions of sections 45a-603 to 45a-622,
inclusive, shall be liberally construed in the best interests of any minor child
affected by them, provided the requirements of such sections are otherwise
satisfied’’); I would join the states that apply the preponderance of the
evidence standard. I also believe that the preponderance of the evidence
standard more evenly balances the scales between the rights of the parents
and those of the child, particularly in light of the presumption.