In re Zakai F. ( 2021 )

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IN RE ZAKAI F.*
(SC 20234)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn, and Ecker, Js.**
Syllabus
The respondent mother appealed to the Appellate Court from the judgment
of the trial court, which denied her motion for reinstatement of guardian-
ship rights with respect to her minor child, Z. The respondent had
voluntarily agreed to relinquish temporary guardianship of Z to Z’s mater-
nal aunt, the petitioner. Subsequently, when the respondent requested
that the petitioner return Z to her care, the petitioner filed in the Probate
Court a petition for immediate, temporary custody of Z and an applica-
tion for the removal of the respondent as the guardian of Z. The Probate
Court issued an order vesting the petitioner with immediate, temporary
custody of Z. Thereafter, the case was transferred to the Superior Court,
where the parties entered into a stipulated agreement, pursuant to which
the court transferred guardianship of Z to the petitioner but ordered
limited visitation between Z and the respondent. Subsequently, the
respondent filed her motion for reinstatement. In denying the respon-
dent’s motion and granting a separate motion filed by Z’s guardian ad
litem to suspend overnight visitation with the respondent, the trial court
found that the respondent was capable of adequately providing for Z
and that there had never been a judicial adjudication of neglect or abuse
of Z but nevertheless concluded, on the basis of a fair preponderance
of the evidence, that reinstatement of the respondent’s guardianship
rights was not in Z’s best interests. On appeal to the Appellate Court,
the respondent claimed, inter alia, that the trial court violated her federal
constitutional right to the care and custody of Z in denying her motion
for reinstatement without finding that she was unfit and without finding
by clear and convincing evidence that Z would be at a substantial risk
of harm if guardianship were terminated. Thereafter, the Appellate Court
affirmed the trial court’s judgment, concluding that the respondent could
not prevail on her unpreserved claim under the third prong of State v.
Golding (213 Conn. 233) because the petitioner and Z, through his
guardian ad litem, rebutted the constitutional presumption that reunifi-
cation with the respondent was in Z’s best interests. The Appellate Court
also concluded that proof by a fair preponderance of the evidence was
the applicable standard in a proceeding for reinstatement of guardian-
ship. On the granting of certification, the respondent appealed to this
court, claiming that she was entitled to a presumption that reinstatement
was in the best interests of Z and to a heightened standard of proof.
Held that a parent seeking reinstatement of guardianship pursuant to
statute (§ 45a-611), who has demonstrated that the factors that resulted
in the parent’s removal as guardian have been resolved satisfactorily,
is entitled to a rebuttable, constitutional presumption that reinstatement
is in the best interests of the child, a third party seeking to rebut that
presumption must do so by clear and convincing evidence, and, because
it was unclear whether the trial court applied this presumption, and
because that court applied the preponderance of the evidence standard,
the judgment of the Appellate Court was reversed, and the case was
remanded for further proceedings: this court previously concluded in
In re Juvenile Appeal (Anonymous) (177 Conn. 648) that parents of a
child committed to the state youth and children services agency are
entitled to a presumption, in the absence of a continuing cause for
commitment, that revocation of such commitment will be in the child’s
best interests, and it found that conclusion to be equally applicable to
reinstatement of guardianship proceedings; moreover, this court con-
cluded, after weighing the factors set forth in Mathews v. Eldridge (424
U.S. 319), that due process requires a third party seeking to rebut the
presumption that reinstatement of guardianship is in the child’s best
interests to do so by clear and convincing evidence, as the application
of that heightened standard of proof in this context most appropriately
balances the parent’s interest in the companionship, care, custody and
management of his or her child, and the interest of the child in safety
and consistency, as well as not being dislocated from the emotional
attachments that derive from the intimacy of daily association with his
or her parent; furthermore, application of the clear and convincing
standard in this context serves to reduce the risk of error, the cost of
which is significant given the weight of the private interests at stake,
and serves the interests of the state in protecting the welfare of the
child, reducing the cost and burden of guardianship proceedings, and
ensuring that such proceedings are conducted fairly.
Argued May 2, 2019—officially released July 22, 2020***
Procedural History
Petition by the maternal aunt for immediate, tempo-
rary custody of the respondent mother’s minor child
and application by the petitioner for the removal of the
respondent as guardian of the child, brought to the
Probate Court for the district of Derby, which issued an
order vesting the petitioner with immediate, temporary
custody of the child; thereafter, the case was transferred
to the Superior Court in the judicial district of Ansonia-
Milford, where the respondent filed a motion to vacate
the order of immediate, temporary custody; subse-
quently, the case was transferred to the Superior Court
in the judicial district of New Haven, Juvenile Matters,
where the guardianship of the child was transferred
to the petitioner pursuant to a stipulated agreement
between the parties; thereafter, the court, Conway, J.,
denied the respondent’s motion to reinstate her guard-
ianship rights, granted the motion filed by the guardian
ad litem to suspend overnight visitation with the respon-
dent, and rendered judgment thereon, from which the
respondent appealed to the Appellate Court, DiPen-
tima, C. J., and Alvord and Bear, Js., which affirmed
the judgment of the trial court, and the respondent, on
the granting of certification, appealed to this court.
Reversed; further proceedings.
Benjamin M. Wattenmaker, assigned counsel, for the
appellant (respondent mother).
Albert J. Oneto IV, assigned counsel, for the appellee
(petitioner).
David B. Rozwaski, assigned counsel, for the
minor child.
Joshua Michtom, assistant public defender, filed a
brief for the Office of the Chief Public Defender as
amicus curiae.
Louise Truax and Leslie I. Jennings-Lax filed a brief
for the Connecticut Chapter of the American Academy
of Matrimonial Lawyers as amicus curiae.
Stacy L. Schleif and Jay E. Siklick filed a brief for the
Center for Children’s Advocacy, Inc., as amicus curiae.
William Tong, attorney general, Clare Kindall, solici-
tor general, and Michael Besso, Benjamin Zivyon,
Evan O’Roark and Sara Nadim Swallen, assistant attor-
neys general, filed a brief for the Commissioner of Chil-
dren and Families as amicus curiae.
Opinion
McDONALD, J. In this certified appeal, we must
determine whether there is a constitutional presump-
tion that reinstatement of guardianship rights to a par-
ent under General Statutes § 45a-6111 is in the best
interests of the child and, if so, whether a heightened
standard of proof is required to rebut that presumption.
The respondent mother,2 Kristi F., appeals from the
judgment of the Appellate Court, which affirmed the
trial court’s denial of her motion for reinstatement of
guardianship rights with respect to her minor son, Zakai
F., on the basis that reinstatement was not in Zakai’s
best interests. See In re Zakai F., 185 Conn. App. 752,
755, 776–77, 198 A.3d 135 (2018). On appeal, the respon-
dent contends that she is entitled to a presumption that
reinstatement is in the best interests of the child and
that she is also entitled to a heightened standard of
proof.
We conclude that, under § 45a-611, once a parent
demonstrates that the factors that resulted in the
removal of the parent as guardian have been resolved
satisfactorily, the parent is entitled to a presumption
that reinstatement of guardianship rights is in the best
interests of the child. We also conclude that the party
opposing reinstatement must rebut this presumption
by clear and convincing evidence. In the present case,
because it is unclear whether the trial court applied
this presumption, and because it did not determine that
the petitioner had rebutted that presumption by clear
and convincing evidence, we conclude that the trial
court improperly denied the respondent’s motion for
reinstatement of guardianship. Accordingly, we reverse
the judgment of the Appellate Court.
The record reveals the following relevant facts and
procedural history. Zakai was born in early 2011 and
resided with the respondent until approximately July,
2013, when the respondent voluntarily agreed that the
petitioner, Nikki F., the respondent’s sister and Zakai’s
maternal aunt, would care for Zakai. The parties agreed
that the petitioner would temporarily care for Zakai
while the respondent pursued employment opportuni-
ties and obtained appropriate housing and a reliable
vehicle. The respondent reassumed custody and care
of Zakai in late January or early February, 2014. There-
after, Zakai was physically assaulted by the respon-
dent’s live-in boyfriend, Montreal C., while the respon-
dent was at work. Although both Montreal and the
respondent were initially criminally charged after the
assault, the charges against the respondent were
dropped.
Given the respondent’s continued work commit-
ments and Zakai’s emotional and physical state follow-
ing Montreal’s abuse of Zakai, the respondent agreed
that Zakai again would stay temporarily with the peti-
tioner. Less than one week later, the respondent
requested that the petitioner return Zakai to her care.
The petitioner did not respond to the respondent’s
request but, instead, filed a petition for immediate, tem-
porary custody and an application for removal of guard-
ianship in the Probate Court for the district of Derby
in February, 2014, alleging, among other things, that
Montreal continued to live at the respondent’s home
despite a restraining order barring him from contact
with Zakai. The Probate Court issued an ex parte order
granting the petitioner immediate, temporary custody
of Zakai but did not rule on the petitioner’s motion for
removal of guardianship.
In July, 2014, ‘‘the respondent filed a motion in the
Probate Court for transfer of the case to the Superior
Court. On July 16, 2014, the motion was granted, and
the case was transferred to the family division of the
Superior Court in Milford. [In August], 2014, the respon-
dent filed a motion to vacate the Probate Court order
granting the petitioner temporary custody of Zakai. 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 at a location other than the home
of the petitioner up to twice a week, subject to the
requirements that the length of visitation be determined
by the petitioner, visitation occur only at sites accept-
able to the petitioner, and only persons acceptable to
the petitioner be present during visitation.
‘‘In the fall of 2014, the respondent was arrested after
an incident in a public park involving the petitioner and
a maternal uncle of Zakai, and she was charged with
threatening and breach of [the] peace. A criminal pro-
tective order was issued barring any contact between
the respondent and the petitioner but reserving for the
family division of the Superior Court the issue of the
appropriateness of the respondent’s continued contact
with Zakai. [In April], 2015, the court granted the peti-
tioner’s motion to have the case transferred to the juve-
nile division of the Superior Court in New Haven.
‘‘On June 18, 2015, the court . . . ordered the Com-
missioner of Children and Families (commissioner) to
conduct a guardianship study. The guardian ad litem
moved for a [court-ordered] psychological evaluation
of the parties, and that motion was granted on Decem-
ber 29, 2015.’’ (Footnote omitted.) Id., 756–57.
In December, 2015, by agreement of the parties, the
court modified the visitation schedule to allow a private
agency to arrange two weekly visits between the
respondent and Zakai. Thereafter, in January, 2016, the
court increased the length of Sunday visits from two
to four hours. Then, in March, 2016, the trial court
granted an ex parte motion to suspend unsupervised
visitation.3
A hearing on the respondent’s motion to vacate the
order of temporary custody and the petitioner’s motion
to transfer guardianship was scheduled for September
21, 2016. Before the hearing, however, the court approved
an agreement resolving all outstanding issues. By agree-
ment of the parties, the court transferred guardianship
of Zakai to the petitioner, ordered unsupervised day-
time visits between the respondent and Zakai, and
ordered that, until the protective order was resolved
or modified, 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 visitation schedule, includ-
ing overnight visits, would be arranged through family
therapy.
Approximately nine months later, in June, 2017, the
respondent filed a motion to reinstate her guardianship
rights to Zakai. ‘‘Subsequently, the court again ordered
the commissioner to conduct and complete a guardian-
ship study pursuant to General Statutes § 46b-129 (n).
The respondent subsequently filed a motion for over-
night visitation on November 3, 2017, which was heard
with her motion for reinstatement of guardianship. . . .
[After several days of hearings on the motions, on]
December 12, 2017, the court 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.’’4
Id., 758.
On February 2, 2018, the guardian ad litem filed a
motion to suspend overnight visitation, alleging that the
respondent had violated the court’s December 12, 2017
order by allowing an unrelated male to stay at her home
while Zakai was there. The guardian ad litem also repre-
sented that Zakai reported to his therapist that the
respondent had hit him and his sister. Thereafter, the
court reconvened the proceedings to hear testimony
and receive other evidence regarding both the motion
to suspend overnight visitation and the respondent’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 a memorandum
of decision addressing the respondent’s motion to rein-
state guardianship and the guardian ad litem’s motion
to suspend overnight visitation. First, the court noted
that, since the 2014 inception of this case, ‘‘there has
never been a judicial adjudication of neglect or abuse
as to Zakai, and no court has ever committed Zakai to
the care and custody of [the Department of Children
and Families],’’ and that Zakai’s placement with the
petitioner, initially in 2013 and then following the Febru-
ary, 2014 assault, was by family agreement. The court
next explained that § 45a-611 (b) was the appropriate
statutory framework within which to consider the
respondent’s motion for reinstatement of guardianship.
See footnote 1 of this opinion. Under that statutory
framework, the 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 went on to consider whether reinstate-
ment of guardianship was in Zakai’s best interests. The
court stated that, ‘‘[c]ommencing in February, 2014, [the
respondent] has remained steadfast in her efforts to
have Zakai return to her care. Since 2014, she has
obtained and sustained appropriate housing, [and] sta-
ble and sufficient employment, and she has engaged in
court-ordered anger management [and] mental health
treatment and abided by the conditions of a protracted
criminal protective order and conditions of probation.
She sought out and, for at least [one and one-half years],
paid for professional parenting/visitation services, and
she has diligently and respectfully attended juvenile
court proceedings and abided by the juvenile court’s
orders. By all accounts, [the respondent] successfully
parents her younger daughter as a single mother.’’
The court weighed these findings against testimony
and evidence regarding Zakai’s emotional and physical
debilitation before and after overnight visitation with
the respondent and his need for permanency. Specifi-
cally, the court credited 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 dem-
onstrates regressive, debilitating behavior, and that
there has been a negative change in his behavior since
the commencement of overnight visits with the respon-
dent.5 The court explained that, given the degree of early
childhood trauma Zakai has experienced, the amount
of time he has spent in the petitioner’s care, and the
lack of security he feels when he is in the respondent’s
care, to abruptly remove him from the petitioner’s care
would be cruel and exacerbate his alarming behaviors.
The court also noted that, ‘‘[p]roverbially speaking,
Zakai is screaming for permanency; he wants and needs
to know his one ‘forever’ home.’’
The court ultimately found that, based on a fair pre-
ponderance of the evidence, it was not in Zakai’s best
interests to return to the respondent’s care. As such,
the court denied the respondent’s motion to reinstate
guardianship and granted the guardian ad litem’s
motion to suspend overnight visitation. The court fur-
ther ordered that any visits between the respondent
and Zakai would occur at the sole discretion of the
petitioner.
The respondent appealed from the judgment of the
trial court to the Appellate Court. On appeal to the
Appellate Court, the respondent claimed, among other
things, that the trial court violated her fundamental
right under the United States constitution to the care
and custody of Zakai when it denied her motion for
reinstatement of guardianship without finding that she
was unfit and without finding by clear and convincing
evidence that Zakai would be at a substantial risk of
harm if the current guardianship were terminated.6 In
re Zakai F., supra, 185 Conn. App. 760. The Appellate
Court reviewed the respondent’s unpreserved claim
pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015).7 See In re Zakai
F., supra, 765–75.
The Appellate Court concluded that, although the
first two prongs of Golding were satisfied, the respon-
dent could not prevail under the third prong. See id.
Specifically, it concluded that ‘‘the [trial] court properly
considered evidence from both the petitioner and Zakai,
through their attorney and guardian ad litem, rebutting
the presumption that reunification with the respondent
was in Zakai’s best interest[s]. . . . Thus, because the
court [correctly] determined that the petitioner and
Zakai rebutted the constitutional presumption . . . the
respondent has failed to satisfy the third Golding prong
. . . .’’ Id., 769. The Appellate Court also concluded
that proof by a fair preponderance of the evidence is
the applicable standard to be applied in a proceeding
for reinstatement of guardianship, and, thus, the trial
court applied the correct standard. Id., 773–75. This
certified appeal followed.8
I
Resolution of the certified issue in this appeal requires
us to first consider whether, when a parent seeks rein-
statement of guardianship rights under § 45a-611, the
parent is entitled to a constitutional presumption that
reinstatement is in the best interests of the child, once
the parent has established that the cause for removal no
longer exists.9 Both the respondent and the petitioner
agree that such a presumption is required.10
We begin with the text of § 45a-611 (b), which pro-
vides in relevant part: ‘‘If the court determines that the
factors which resulted in the removal of the parent have
been resolved satisfactorily, the court may remove the
guardian and reinstate the parent as guardian of the
person of the minor, if it determines that it is in the
best interests of the minor to do so. . . .’’ Nothing in
the language of the statute itself requires a presumption
that reinstatement with a parent is in the best interests
of the child.
Practice Book § 35a-20 also governs the procedure by
which a parent can seek reinstatement of guardianship.
Practice Book § 35a-20 (d) provides: ‘‘The hearing on
a motion for reinstatement of guardianship is disposi-
tional in nature. The party seeking reinstatement of
guardianship has the burden of proof to establish that
cause for transfer of guardianship to another person or
agency no longer exists. The judicial authority shall
then determine if reinstatement of guardianship is in
the child’s or youth’s best interest.’’ Practice Book § 35a-
20, like § 45a-611, does not address whether there is a
presumption in place.
To date, this court has not explicitly addressed
whether a parent seeking reinstatement of guardianship
is entitled to a constitutional presumption that rein-
statement is in the best interests of the child. We do,
however, have guidance from our case law bearing on
this question in an analogous context and find our deci-
sion in In re Juvenile Appeal (Anonymous), 177 Conn.
648, 420 A.2d 875 (1979), instructive. In that case, a
mother sought revocation of her child’s commitment
to the Commissioner of Children and Youth Services,
pursuant to General Statutes (Rev. to 1977) § 17-62 (f).11
See id., 650, 657.
In In re Juvenile Appeal (Anonymous), the trial court
‘‘[r]ecogniz[ed] that cause for commitment no longer
existed from the time the petition for revocation was
brought . . . [but] nevertheless concluded that separa-
tion of the child from her foster family at that time
would be contrary to her best interests, and conse-
quently denied the [mother’s] petition for revocation.’’
Id., 658. On appeal, this court examined the language
of General Statutes (Rev. to 1977) § 17-62 (f) and recog-
nized that it set forth a burden shifting scheme. See id.,
659. Specifically, this court concluded that ‘‘[c]learly
the burden is [on] the person applying for the revocation
of commitment to allege and prove that cause for com-
mitment no longer exists. Once that has been estab-
lished, as in this case, the inquiry becomes whether a
continuation of the commitment will nevertheless serve
the child’s best interests. On this point, when it is a
natural parent who has moved to revoke commitment,
the state must prove that it would not be in the best
interests of the child to be returned to his or her natural
parent.’’ (Emphasis in original.) Id.
In explaining the burden shifting scheme, this court
expressly held that a presumption that revocation of
commitment would be in the child’s best interests
should apply. This court explained that, ‘‘[although] it
is certainly true, as we have held, that parents have no
natural right to the custody of their children that can
prevail over a disposition [a]ffecting the child’s best
interests . . . parents are entitled to the presumption,
[in the absence of] a continuing cause for commitment,
that revocation will be in the child’s best interests unless
the state can prove otherwise.’’ (Citations omitted.)
Id., 659–60.
In adopting a presumption that revocation is in the
best interests of the child in In re Juvenile Appeal
(Anonymous), this court relied on a prior decision of
this court, Claffey v. Claffey, 135 Conn. 374, 64 A.2d
540 (1949). See In re Juvenile Appeal (Anonymous),
supra, 177 Conn. 659–60. In Claffey, a mother sought
to regain custody of her daughter from the paternal
grandparents. See Claffey v. Claffey, supra, 374–75. This
court explained that, ‘‘[a]t least, where the controversy
is not between the father and the mother . . . the
mother has a prior right to custody unless the circum-
stances are such that to give it to her would not be for
the best interests of the child. . . . That, under normal
circumstances, the interests of a young child . . . will
be best served by growing up in the care of her mother
does not admit of question.’’ (Citation omitted.) Id., 377.
This court’s reliance on Claffey in In re Juvenile Appeal
(Anonymous) demonstrates that the presumption that
revocation is in the best interests of the child exists
even when the other party involved is not a state actor.
Ultimately, this court in In re Juvenile Appeal (Anon-
ymous) affirmed in part the decision of the Superior
Court, concluding that ‘‘[t]here was ample evidence
from which the court could have concluded that despite
the absence of a continuing cause for commitment, the
state had demonstrated that because of the length of
the separation between [the] mother and [the] child,
for whatever reason, and the intervening relationship
that had developed between the child and her foster
family, it would not at that time have been in the child’s
best interests to return to the custody of her mother.
In the denial of the [mother’s] motion for revocation
of commitment, there was no error.’’ In re Juvenile
Appeal (Anonymous), supra, 177 Conn. 668.
Although the commitment at issue in In re Juvenile
Appeal (Anonymous) was to a state actor; see id.,659–60; we find the court’s conclusion requiring a pre-
sumption that revocation is in the best interests of the
child equally applicable to reinstatement of guardian-
ship proceedings in the present context. Indeed, in
addressing the presumption, this court expressly stated
that, ‘‘[i]n any controversy between a parent and [any-
one not a parent—including relatives, friends or child
care agencies] the parent . . . should have a strong
initial advantage, to be lost only [when] it is shown that
the child’s welfare plainly requires custody to be placed
in the [other party].’’ (Footnote omitted; internal quota-
tion marks omitted.) Id., 662; see id., 662 n.12; see also
In re Bennett v. Jeffreys, 40 N.Y.2d 543, 548–49, 356
N.E.2d 277, 387 N.Y.S.2d 821 (1976). Furthermore, the
cases relied on by this court in support of the presump-
tion in In re Juvenile Appeal (Anonymous), supra, 177
Conn. 660–61, were cases involving private citizens, not
state actors. See Claffey v. Claffey, supra, 135 Conn.
374, 377; In re Spence-Chapin Adoption Service v. Polk,
29 N.Y.2d 196, 198, 203, 274 N.E.2d 431, 324 N.Y.S.2d
937 (1971).
Accordingly, we conclude that a parent seeking rein-
statement of guardianship under § 45a-611, who has
demonstrated that the factors that resulted in the par-
ent’s removal as guardian have been resolved satisfacto-
rily, is entitled to a presumption that reinstatement is
in the best interests of the child.
In the present case, the Appellate Court explained:
‘‘Although we are cognizant of the respondent’s claim
that she, having never been adjudicated as an unfit
parent, was entitled to a presumption that she would
act in Zakai’s best interest[s], such a presumption is not
absolute, but may instead be rebutted by contradictory
evidence of Zakai’s best interest[s].’’ In re Zakai F.,
supra, 185 Conn. App. 767. Despite the fact that it is
not clear whether the trial court applied a presumption
that reinstatement was in Zakai’s best interests, the
Appellate Court then concluded that, ‘‘because the
court [correctly] determined that the petitioner and
Zakai rebutted the constitutional presumption that it
was in Zakai’s best interest[s] to be returned to the
respondent’s care, the respondent has failed to satisfy
the third Golding prong as to the constitutional pre-
sumption that, because she was a fit parent, the best
interest[s] standard required that Zakai be returned to
her.’’ Id., 769.
On the basis of the foregoing, the Appellate Court
correctly recognized that, once a parent has demon-
strated that the cause for removal no longer exists, she
is entitled to a presumption that reinstatement is in the
best interests of the child. See id., 767, 768. It is unclear,
however, that the trial court applied this presumption.
Although the trial court weighed the respondent’s prog-
ress against testimony and evidence regarding Zakai’s
emotional and physical debilitation before and after
overnight visitation with the respondent and his need
for permanency, it never explicitly applied a presump-
tion. Indeed, this court has never previously addressed
whether a parent seeking reinstatement of guardianship
is entitled to a constitutional presumption that rein-
statement is in the best interests of the child. Accord-
ingly, because it is unclear whether the trial court
applied a presumption, and in light of our conclusion
in part II of this opinion that the trial court did not
apply the correct standard of proof, the Appellate Court
improperly affirmed the judgment of the trial court.
II
The presumption we have adopted in part I of this
opinion allows a parent to file a motion for reinstate-
ment of guardianship, and, as long as the parent can
show that the reasons that led to the transfer of guard-
ianship have been ameliorated, the parent is entitled
to a rebuttable presumption that reinstatement is in the
best interests of the child. Having now adopted this
presumption, we also conclude, consistent therewith,
that the burden must shift to the nonparent to rebut
the presumption that reinstatement is in the best inter-
ests of the child. The question that remains is what
standard of proof must be met for the nonparent to
rebut the presumption.
‘‘The trial court’s determination of the proper legal
standard in any given case is a question of law subject
to our plenary review.’’ Fish v. Fish, 285 Conn. 24, 37,
939 A.2d 1040 (2008). ‘‘Where no standard of proof is
provided in a statute, due process requires that the
court apply a standard which is appropriate to the issues
involved.’’ In re Juvenile Appeal (83-CD), 189 Conn.
276, 296, 455 A.2d 1313 (1983). Here, § 45a-611 does not
provide a standard of proof to be applied in a proceeding
concerning the reinstatement of guardianship of a
minor, and this court has never addressed which stan-
dard of proof is applicable. In this civil case, there are
only two choices: the preponderance of the evidence
or the clear and convincing evidence standard.
The United States Supreme Court has made clear
that ‘‘its decisions concerning constitutional burdens
of proof have not turned on any presumption favoring
any particular standard. To the contrary, the [c]ourt
has engaged in a straightforward consideration of the
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). The balancing test set forth in Eldridge involves
weighing the following three factors: ‘‘the private inter-
ests affected by the proceeding; the risk of error created
by the [s]tate’s chosen procedure; and the countervail-
ing governmental interest supporting [the] use of the
challenged procedure.’’ Id.; see also Mathews v. Eldridge,
supra, 335. We evaluate each factor in turn.
A
We first consider the private interests affected by
the proceeding. ‘‘The extent to which procedural due
process must be afforded the recipient is influenced by
the extent to which he may be condemned to suffer
grievous loss. . . . Whether the loss threatened by a
particular type of proceeding is sufficiently grave to
warrant more than average certainty on the part of the
[fact finder] turns on both the nature of the private
interest threatened and the permanency of the threat-
ened loss.’’ (Citations omitted; internal quotation marks
omitted.) Santosky v. Kramer, supra, 455 U.S. 758.
The nature of the threatened loss in the present case
could not be more profound: it is the fundamental right
to family integrity. See, e.g., id., 758–59; In re Juvenile
Appeal (83-CD), supra, 189 Conn. 284. The ‘‘right to
family integrity . . . encompasses the reciprocal rights
of both [the] parent and [the] children . . . the interest
of the parent in the companionship, care, custody and
management of his or her children . . . and of the chil-
dren in not being dislocated from the emotional attach-
ments that derive from the intimacy of daily association
. . . with the parent . . . .’’ (Citations omitted; inter-
nal quotation marks omitted.) Pamela B. v. Ment, 244
Conn. 296, 310, 709 A.2d 1089 (1998). In other words,
parents and children share a compelling interest in
remaining together as a family unit. See, e.g., In re
Christina M., 280 Conn. 474, 486–87, 908 A.2d 1073(2006) (‘‘[i]n cases involving parental rights, the rights
of the child coexist and are intertwined with those of
the parent’’ (internal quotation marks omitted)); see
also, e.g., Santosky v. Kramer, supra, 455 U.S. 760 (‘‘the
child and his parents share a vital interest in preventing
erroneous termination of their natural relationship’’).
It is well established that ‘‘the interest of parents
in the care, custody, and control of their children—is
perhaps the oldest of the fundamental 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). ‘‘The rights to conceive and to raise
one’s children have been deemed ‘essential’ . . . ‘basic
civil rights of man’ . . . and ‘[r]ights far more precious
. . . than property rights’ . . . . ‘It is cardinal with us
that the custody, care and nurture of the child reside
first in the parents, whose primary function and free-
dom include preparation for obligations the state can
neither supply nor hinder.’ . . . The integrity of the
family unit has found protection in the [d]ue [p]rocess
[c]lause of the [f]ourteenth [a]mendment . . . the
[e]qual [p]rotection [c]lause of the [f]ourteenth [a]mend-
ment . . . and the [n]inth [a]mendment [to the United
States constitution] . . . .’’ (Citations omitted.) Stan-
ley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L.
Ed. 2d 551 (1972); see also In re Juvenile Appeal (83-
CD), supra, 189 Conn. 284.
In addition to their fundamental right to family integ-
rity, children have an additional interest in safety and
consistency. See Osborne v. Ohio, 495 U.S. 103, 109,
110 S. Ct. 1691, 109 L. Ed. 2d 98 (1990). When there
never has been a finding of abuse or neglect, the child’s
safety interest should not necessarily be afforded equal
weight with the shared constitutional interest in family
integrity. This court has previously concluded in a
related context that it is only when serious physical
harm or immediate danger is present that the child’s
and the parent’s shared interests in family integrity
diverge. See In re Juvenile Appeal (83-CD), supra, 189
Conn. 287–88 (only when ‘‘serious physical illness or
serious physical injury’’ or ‘‘immediate physical danger’’
is present does ‘‘the child’s interest[s] no longer [coin-
cide] 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’’ (citation omitted;
internal quotation marks omitted)). When, as in the
present case, there has been no finding of parental
unfitness or abuse or neglect, it is inappropriate to
afford the child’s general interest in safety equal weight
to the shared constitutional interest in family integrity.12
Cf. Santosky v. Kramer, supra, 455 U.S. 760 (‘‘At the
[fact-finding stage], the [s]tate cannot presume that a
child and his parents are adversaries. . . . [U]ntil the
[s]tate proves parental unfitness, the child and his par-
ents share a vital interest in preventing erroneous termi-
nation of their natural relationship.’’ (Citation omit-
ted.)). Indeed, in a reinstatement of guardianship
proceeding, prior to being entitled to the presumption,
the parent must have already demonstrated that the
factors that resulted in removal—including the child’s
safety—have been resolved satisfactorily. See General
Statutes § 45a-611 (b).
To the extent that the child’s interest in safety is
implicated, we note that the Supreme Court of Nebraska
has explained that applying a heightened standard of
proof in reinstatement of guardianship proceedings will
actually promote the safety of children by encouraging
parents experiencing difficulties to seek out temporary
guardians, ‘‘safe in the knowledge that they will be able
to regain custody in the future.’’ In re Guardianship
of D.J., 268 Neb. 239, 248, 682 N.W.2d 238 (2004); see
also Boddie v. Daniels, 288 Ga. 143, 146–47, 702 S.E.2d
172 (2010) (‘‘[G]uardianships are intended to encourage
parents experiencing difficulties to temporarily turn
over the custody and care of their children—safe in the
knowledge that they will be able to regain custody in the
future. This policy would be frustrated if guardianships
were [difficult to terminate and constitutional parental
rights were not protected], because parents would be
less likely to voluntarily petition for a guardian to be
appointed to care for their minor children. Therefore,
children would unnecessarily be placed in jeopardy in
many circumstances.’’ (Internal quotation marks omit-
ted.)). Adopting the lower, preponderance of the evi-
dence standard likely would serve as a significant disin-
centive for responsible parents to seek out temporary
guardians in times of need for fear that they will not
be able to reestablish guardianship of their child. More-
over, despite the fact that the reasons that resulted in
the removal of the parent as guardian had been resolved
satisfactorily, evidence that a child’s safety was none-
theless implicated would likely be among the strongest
evidence a nonparent would have to rebut the presump-
tion that reinstatement is in the best interests of the
child by clear and convincing evidence.13
A child’s interests in family integrity and safety may
be in equipoise in certain proceedings, such as a neglect
proceeding, because the safety interest of the child is
squarely implicated and the court has available to it
different options, short of removal, that correspond to
the risk to the child and the parent’s ability to meet the
child’s needs. See In re Juvenile Appeal (83-CD), supra,
189 Conn. 287–88; see also Pamela B. v. Ment, supra,
244 Conn. 313–14 (‘‘[a]lthough a child’s physical and
emotional well-being outweighs the interest in preserv-
ing the family integrity, the disruption of a child’s family
environment should not be extended beyond what is
unequivocally needed to safeguard and preserve the
child’s best interests’’). The child’s interests in family
integrity and safety are not in equipoise, however, dur-
ing proceedings to reinstate guardianship when there
has been no finding of abuse or neglect because, as
discussed, the child’s safety interest may not be impli-
cated, and the denial of reinstatement results in contin-
ued removal of the child from the parent’s custody and
does so in the absence of imminent danger to the child.14
Accordingly, we conclude that the nature of the inter-
ests weighs in favor of a heightened standard of proof.
Turning to the permanency of the deprivation, we
note that, although a denial of reinstatement of guard-
ianship under § 45a-611 does not necessarily work a
permanent deprivation of all parental rights, it deprives
the parent of the most essential attributes of parent-
hood, such as the right to control the child’s care, educa-
tion, health, religion, and association for the duration
of the guardianship.15 See Roth v. Weston, 259 Conn. 202,
216–17, 789 A.2d 431 (2002); see also General Statutes
§ 45a-604 (5) (‘‘ ‘[g]uardianship’ means guardianship of
the person of a minor, and includes: (A) The obligation
of care and control; (B) the authority to make major
decisions affecting the minor’s education and welfare,
including, but not limited to, consent determinations
regarding marriage, enlistment in the armed forces and
major medical, psychiatric or surgical treatment; and
(C) upon the death of the minor, the authority to make
decisions concerning funeral arrangements and the dis-
position of the body of the minor’’). As the present
case demonstrates, a court denying reinstatement of
guardianship may also deny visitation, thereby denying
the parent of the ability to make important decisions
regarding the child’s upbringing and also depriving the
parent and the child of a meaningful relationship, creat-
ing a de facto and permanent termination of rights. See
footnote 16 of this opinion.
The United States Supreme Court has required ‘‘an
intermediate standard of proof—clear and convincing
evidence—when the individual interests at stake in a
state proceeding are both particularly important and
more substantial than mere loss of money.’’ (Internal
quotation marks omitted.) Santosky v. Kramer, supra,455 U.S. 756. Connecticut law implements the clear and
convincing standard in a variety of contexts, including
those that involve only monetary disputes. See, e.g.,
Goldstar Medical Services, Inc. v. Dept. of Social Ser-
vices, 288 Conn. 790, 819, 955 A.2d 15 (2008) (clear and
convincing standard is appropriate standard of proof
in common-law fraud cases); Notopoulos v. Statewide
Grievance Committee, 277 Conn. 218, 226, 890 A.2d 509(clear and convincing standard is required to determine
whether attorney violated Rules of Professional Con-
duct), cert. denied, 549 U.S. 823, 127 S. Ct. 157, 166 L.
Ed. 2d 39 (2006); Black v. Goodwin, Loomis & Britton,
Inc., 239 Conn. 144, 163–64, 681 A.2d 293 (1996) (clear
and convincing evidence standard of proof is required
to establish collusion); Papallo v. Lefebvre, 172 Conn.
App. 746, 754, 161 A.3d 603 (2017) (clear and convincing
standard of proof is required to establish fiduciary fair
dealing). It 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.
The United States Supreme Court has recognized that
even a temporary deprivation of a constitutional right
may require a heightened standard of proof. See San-
tosky v. Kramer, supra, 455 U.S. 759 (‘‘In [government
initiated] proceedings to determine juvenile delin-
quency . . . civil commitment . . . deportation . . .
and denaturalization . . . [the United States Supreme]
Court has identified losses of individual liberty suffi-
ciently serious to warrant imposition of an elevated
burden of proof. Yet juvenile delinquency adjudications,
civil commitment, deportation, and denaturalization, at
least to a degree, are all reversible official actions.’’
(Citations omitted; emphasis in original.)). For exam-
ple, in Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804,
60 L. Ed. 2d 323 (1979), the United States Supreme
Court held that the clear and convincing standard was
required in a civil commitment proceeding despite the
fact that the appellant had the right to periodic review
of his condition and immediate release when he was
no longer deemed to be a danger to himself or others.
See id., 422, 433.
This court has similarly recognized the importance
of decisions temporarily affecting parental rights. We
have explained that ‘‘[e]ven a temporary custody order
may have a significant impact on a subsequent perma-
nent custody decision . . . [by] establish[ing] a foun-
dation for a stable long-term relationship that becomes
an important factor in determining what final custodial
arrangements are in the best interests of the child.’’
(Internal quotation marks omitted.) In re Shamika F.,
256 Conn. 383, 403, 773 A.2d 347 (2001). As a result,
this court has recognized that a temporary deprivation
of a parent’s right to the care and custody of her child
is such a serious harm that it has deemed interlocutory
orders affecting that interest to be final judgments. See,
e.g., Sweeney v. Sweeney, 271 Conn. 193, 208–11, 856
A.2d 997 (2004) (pendente lite order related to religious
and educational upbringing of minor child); In re Sham-
ika F., supra, 405–406 (order of temporary custody pur-
suant to neglect statute); Madigan v. Madigan, 224
Conn. 749, 756–58, 620 A.2d 1276 (1993) (order of tem-
porary physical custody in dissolution action).
The petitioner and the concurring and dissenting jus-
tice contend that, because a reinstatement of guardian-
ship proceeding does not necessarily lead to a perma-
nent termination of parental rights, given that the parent
may file additional motions for reinstatement, due pro-
cess does not require that we favor the parent’s interests
over those of the child. We are not persuaded. First,
adopting the heightened, clear and convincing standard
does not favor parental rights over those of the child
because both the parent and the child share a compel-
ling interest in family integrity. Moreover, before a par-
ent is entitled to the presumption, she must first demon-
strate that the factors that resulted in her removal as
guardian have been resolved satisfactorily. In many
cases, this means that the parent is fit. If other circum-
stances, however, implicate the child’s interest in
safety, the nonparent will have strong evidence to rebut
the presumption that reinstatement is in the best inter-
ests of the child. As such, the clear and convincing
standard most appropriately balances these interests.
Additionally, the fact that the parent may reapply for
reinstatement in the future is often an illusory right
given that the amount of time the child and the parent
have been separated will only continue to grow, and
the child likely will continue to bond more and more
with the guardian. Thus, the fact that a parent may
again seek reinstatement of guardianship does not
diminish the constitutional significance of the depriva-
tion of the interest at stake because ‘‘[a] lost opportunity
to spend significant time with one’s child is not recover-
able.’’16 Taff v. Bettcher, 243 Conn. 380, 387, 703 A.2d 759(1997). Accordingly, we conclude that the first factor
of the balancing test set forth in Eldridge strongly
weighs in favor of the heightened, clear and convincing
standard of proof.
B
We next consider the second factor in the Eldridge
balancing test, specifically, ‘‘both the risk of erroneous
deprivation of private interests resulting from [the] use
of a ‘fair preponderance’ standard and the likelihood
that a higher evidentiary standard would reduce that
risk. . . . [Because] the . . . proceeding is an adver-
sary contest between the [third party] and the . . . par-
ents, the relevant question is whether a preponderance
standard fairly allocates the risk of an erroneous [fact-
finding] between these two parties.’’ (Citation omitted.)
Santosky v. Kramer, supra, 455 U.S. 761.
A significant concern arises when a third party is
involved in reinstatement of guardianship proceedings,
which demonstrates that the preponderance standard
creates a risk of erroneous deprivation of the right to
family integrity. Before appointing a guardian, the state
must use reasonable efforts to keep the child with the
parent. See General Statutes § 45a-610; see also General
Statutes § 17a-111b (a) (commissioner has statutory
duty to seek to reunify child and parent except under
very limited circumstances). By contrast, when a third
party is opposing reinstatement of guardianship, neither
the state nor the third party has any obligation to aid
in the reunification of the family. The parent is not
afforded the same protections to which she would have
been entitled if the state, rather than a third party, had
opposed reinstatement. These protections are important
because, if no attempts are made to reunify the parent
and the child, the child will continue to spend more time
with the guardian and, as the concurring and dissenting
justice notes, the child will develop stronger emotional
bonds with the guardian, further reducing the parent’s
ability to reunify the family.17 These protections are even
more important during a proceeding to reinstate guard-
ianship to a parent when there has been no finding of
unfitness because, as the United States Supreme Court
has noted, ‘‘until the [s]tate proves parental unfitness,
the child and his parents share a vital interest in pre-
venting erroneous termination of their natural relation-
ship. Thus, at the [fact-finding stage], the interests of
the child and his natural parents coincide to favor [the]
use of [error reducing] procedures.’’ (Footnote omit-
ted.) Santosky v. Kramer, supra, 455 U.S. 760–61. For
these reasons, we also respectfully disagree with the
concurring and dissenting justice’s assertion that the
existence of the presumption that reinstatement is in
the best interests of the child alone provides sufficient
protection to a parent’s fundamental interest in family
integrity.
The present case also implicates a concern that was
raised in Santosky. Reinstatement of guardianship pro-
ceedings employ the best interests of the child analysis;
see General Statutes § 45a-611 (b); which leaves the
reinstatement determination unusually open to the sub-
jective assessment of the trial judge. See Roth v. Weston,
supra, 259 Conn. 223 (‘‘[the best interest] standard dele-
gates to judges authority to apply their own personal
and essentially unreviewable lifestyle preferences to
resolving each dispute’’ (internal quotation marks omit-
ted)). As noted in the amicus brief filed by the Office
of the Chief Public Defender, this subjective analysis
‘‘that considers a child’s best interests when a parent
is fit to care for that child runs the very real risk of
infringing the . . . right [of the parents and the chil-
dren] to family integrity on the basis of poverty . . . .’’
In similar contexts, this court has recognized this risk.
See, e.g., In re Juvenile Appeal (83-CD), supra, 189
Conn. 292 (‘‘[there is a] risk that judges or social work-
ers will be tempted, consciously or unconsciously, to
compare unfavorably the material advantages of the
child’s natural parents with those of prospective adop-
tive parents [or foster parents]’’ (internal quotation
marks omitted)). Given that this subjective assessment
will often negatively affect parents of lower socioeco-
nomic status; see State v. Anonymous, 179 Conn. 155,
167–68, 425 A.2d 939 (1979); requiring the heightened,
clear and convincing standard will appropriately bal-
ance the interests of the parent and the child and protect
parents, especially those of lower socioeconomic sta-
tus, from the erroneous deprivation of their parental
rights.
Given the weight of the private interests at stake, the
cost of any error in reinstatement of guardianship rights
in a fit parent is significant. ‘‘Increasing the burden of
proof is one way to impress the [fact finder] with the
importance of the decision and thereby perhaps to
reduce the chances that inappropriate [deprivations of
guardianship] will be ordered.’’ (Internal quotation
marks omitted.) Santosky v. Kramer, supra, 455 U.S.
764–65. As we have explained, ‘‘[t]he clear and convinc-
ing standard of proof is substantially greater than the
usual civil standard of a preponderance of the evidence,
but less than the highest legal standard of proof beyond
a reasonable doubt.’’ Miller v. Commissioner of Correc-
tion, 242 Conn. 745, 794, 700 A.2d 1108 (1997). Imple-
menting the intermediate level, clear and convincing
standard would help to reduce the risk of erroneous
decisions. See id., 795 (‘‘clear and convincing evidence
standard should operate as a weighty caution upon the
minds of all judges, and it forbids relief whenever the
evidence is loose, equivocal or contradictory’’ (internal
quotation marks omitted)). Accordingly, we conclude
that the second factor of the balancing test set forth in
Eldridge weighs in favor of the clear and convincing
standard of proof.
C
Finally, the third factor requires that we consider
the countervailing governmental interest supporting the
use of the challenged procedure, namely, ‘‘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.
Although the state is not a direct party in a guardianship
proceeding between two private parties and has no
direct interest in reinstatement proceedings under
§ 45a-611, the state does have an interest in protecting
the welfare of the child and a fiscal and administrative
interest in reducing the cost and burden of such pro-
ceedings. See Santosky v. Kramer, supra, 455 U.S. 766;
Fish v. Fish, supra, 285 Conn. 86. The courts also have
an interest in balancing the interests of the state and
the parents by ensuring that the proceeding is con-
ducted fairly. We conclude that the clear and convincing
evidence standard adequately serves these interests.
As the United States Supreme Court has explained,
because ‘‘the [s]tate has an urgent interest in the welfare
of the child, it shares the parent’s interest in an accurate
and just decision at the [fact-finding] proceeding. . . .
As parens patriae, the [s]tate’s goal is to provide the
child with a permanent home. . . . Yet [although] there
is still reason to believe that positive, nurturing parent-
child relationships exist, the parens patriae interest
favors preservation, not severance, of natural familial
bonds. . . . [T]he [s]tate registers no gain [toward] its
declared goals when it separates children from the cus-
tody of fit parents.’’ (Citations omitted; emphasis omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Santosky v. Kramer, supra, 455 U.S. 766–67. Thus,
when a parent who has never been found to be unfit
seeks reinstatement of guardianship, the state’s interest
favors protecting the interest of the parent and the child
in family integrity.
The state’s administrative and fiscal burdens do not
weigh in favor of a lesser standard of proof. Our trial
judges are well versed in the application of the clear
and convincing standard of proof in other related con-
texts. See, e.g., General Statutes § 45a-610 (removal of
parents as guardians); see also, e.g., General Statutes
§§ 17a-111b, 17a-112 and 45a-717 (termination of paren-
tal rights); General Statutes § 45a-650 (appointment of
conservator).
Balancing these three factors, we conclude that due
process requires application of the clear and convincing
standard of proof to rebut the presumption that rein-
statement of guardianship is in the best interests of
the child under § 45a-611.18 Cf. In re Juvenile Appeal
(Anonymous), supra, 177 Conn. 662 (‘‘[i]n any contro-
versy between a parent and a [third party] the parent
. . . should have a strong initial advantage, to be lost
only where it is shown that the child’s welfare plainly
requires custody to be placed in the [third party]’’
(emphasis added; footnote omitted; internal quotation
marks omitted)).19 As we have explained, ‘‘[t]he goals
of strengthening the family and enhancing long-term
parental capacity for child care despite temporary diffi-
culties would be seriously undermined if parents in
need of help could not safely entrust their children,
even for short emergencies, to someone who could give
them better interim care. Such temporary arrangements
under circumstances of extraordinary need should not
put parents in the position of risking permanent loss
of their children due to the intervention of the state.’’
Id., 660–61. A party who opposes the reinstatement of
a parent’s constitutional rights to rear a child must be
required to overcome the presumption by more than a
mere preponderance of the evidence—the lowest and
most basic level of evidentiary proof at trial. Indeed,
in order to trigger the presumption, the parent must
have already demonstrated that the factors that resulted
in her removal as guardian have been resolved. Accord-
ingly, we conclude that the clear and convincing stan-
dard appropriately balances the shared interest of the
parent and the child in family integrity and, to the extent
implicated, the child’s additional interest in safety.
Courts from other jurisdictions have similarly
required a clear and convincing standard of proof when
a parent who has never been found to be unfit seeks
reinstatement of guardianship rights. See, e.g., In re
Parental Responsibilities of E.S., 264 P.3d 623, 627
(Colo. App. 2011); Tourison v. Pepper, 51 A.3d 470,
471–72 (Del. 2012); Boddie v. Daniels, supra, 288 Ga.
146; Hunter v. Hunter, 484 Mich. 247, 265, 771 N.W.2d
694 (2009); In re Guardianship of D.J., supra, 268 Neb.
249; In re Guardianship of Reena D., 163 N.H. 107,
114–15, 35 A.3d 509 (2011); see also, e.g., In re Guard-
ianship of L.L., 745 N.E.2d 222, 230 (Ind. App.)
(applying ‘‘clear and cogent evidence’’ standard), trans-
fer denied sub nom. Froelich v. Clark, 753 N.E.2d 17(Ind. 2001).20 Although we decline to go as far, the
Supreme Court of Arkansas has held that all a fit parent
needs to do to terminate a third-party guardianship
created by consent is to revoke his or her consent
to the guardianship. In re Guardianship of W.L., 467
S.W.3d 129, 133–34 (Ark. 2015). Thus, we conclude that
a third party seeking to rebut the presumption that
reinstatement of guardianship rights to a parent who
has never been found to be unfit is in the best interests
of the child must do so by clear and convincing evi-
dence.
In the present case, the respondent voluntarily relin-
quished temporary guardianship of Zakai. After spend-
ing years in the custody of the petitioner, the trial court
ultimately concluded that the factors that resulted in
the removal of the respondent as guardian had been
resolved and that the respondent had demonstrated
that she was capable of providing for Zakai. Throughout
this case, there has never been a judicial adjudication
of parental unfitness or neglect or abuse of Zakai. The
trial court, however, went on to conclude—by a prepon-
derance of the evidence—that, on the basis of Zakai’s
emotional and physical debilitation before and after
visitation with the respondent, and the length of time
Zakai has been in the petitioner’s care, reinstatement
of guardianship was not in Zakai’s best interests.21
Because the trial court applied the preponderance of
the evidence standard and not the clear and convincing
evidence standard, the respondent’s constitutional due
process rights were violated, and, as such, she has satis-
fied the third prong of Golding. Accordingly, the Appel-
late Court improperly affirmed the judgment of the trial
court, and the case must be remanded for further pro-
ceedings. See Deroy v. Estate of Baron, 136 Conn. App.
123, 127, 43 A.3d 759 (2012) (‘‘[w]hen an incorrect legal
standard is applied, the appropriate remedy is to reverse
the judgment of the trial court and to remand the [case]
for further proceedings’’); see also St. Joseph’s Living
Center, Inc. v. Windham, 290 Conn. 695, 765, 966 A.2d
188 (2009) (Schaller, J., concurring in part and dis-
senting in part) (same).
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for further proceedings according
to law.
In this opinion ROBINSON, C. J., and PALMER and
D’AURIA, Js., concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons who have a proper interest therein and upon
order of the Supreme Court.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018); we decline to identify any party protected or sought to be protected
under a protective order or a restraining order that was issued or applied
for, or others through whom that party’s identity may be ascertained.
** The listing of justices reflects their seniority status on this court as of
the date of oral argument.
*** July 22, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 45a-611 provides in relevant part: ‘‘(b) In the case of
a parent who seeks reinstatement, the court shall hold a hearing . . . . If
the court determines that the factors which resulted in the removal of the
parent have been resolved satisfactorily, the court may remove the guardian
and reinstate the parent as guardian of the person of the minor, if it deter-
mines that it is in the best interests of the minor to do so. . . .’’
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, we refer to the current
revision of the statute.
2
We note that, although the respondent mother filed the motion at issue
in this appeal, the original action commenced when the child’s aunt brought
a petition for immediate, temporary custody and an application for removal
of guardianship. Therefore, we refer to the mother as the respondent and
to the aunt as the petitioner throughout this opinion. This nomenclature is
also consistent with that utilized by the Appellate Court.
3
The motion alleged that the respondent and Montreal had been arrested
on felony narcotics charges. The respondent testified, however, that the
March, 2016 drug charges were not pursued. The trial court noted, it ‘‘may
be that it was also in 2016 when [the respondent] was placed on probation
for the 2014 breach of [the] peace conviction . . . . [The respondent] testi-
fied [that] a condition of probation was urine testing and remaining sub-
stance abuse free.’’ (Citation omitted.)
4
In making its December, 2017 ruling to commence overnight visits with
the respondent, the trial court explained that the respondent had struggled
to sustain a lifestyle conducive to having Zakai return to her care. Specifi-
cally, the court noted the choices in child care the respondent had made
that resulted in Montreal’s abuse of Zakai and the death of her eldest infant
daughter, who died while the respondent left her daughter in the care of
the child’s father. The court also noted that ‘‘[i]t 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.’’ (Emphasis
added; internal quotation marks omitted.)
5
Zakai’s first grade teacher testified that Zakai ‘‘consistently exhibited
less than ideal behavior [on] the days he [was] scheduled to visit with [the
respondent]’’ and that those behaviors ‘‘escalated in both intensity and
frequency’’ since the court ordered increased visitation with the respondent.
Zakai’s teacher further testified that, on the days that Zakai was scheduled
to visit with the respondent, he asked to go to the school nurse and reported
having gotten sick in the bathroom, when he was not sick. The petitioner also
testified that Zakai threw temper tantrums and exhibited other problematic
behavior on days that he was scheduled to visit with the respondent, and
that he asked to go to the doctor to get a note that he is sick.
6
In the Appellate Court, the respondent also claimed that the trial court
had abused its discretion in determining that reinstatement of the respondent
as guardian was not in Zakai’s best interests. See In re Zakai F., supra, 185
Conn. App. 755. The Appellate Court concluded that the trial court did not
abuse its discretion. Id., 776–77. On appeal to this court, the respondent did
not pursue her claim of abuse of discretion.
7
‘‘Under Golding, it is well settled that a defendant may prevail on an
unpreserved claim when: ‘(1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial; and (4) if subject to
harmless error analysis, the state has failed to demonstrate harmlessness
of the alleged constitutional violation beyond a reasonable doubt.’ . . .
State v. Golding, supra, 213 Conn. 239–40; see In re Yasiel R., [supra, 317
Conn. 781] (modifying third prong of Golding).’’ State v. McClain, 324 Conn.
802, 809 n.5, 155 A.3d 209 (2017).
8
We granted the respondent’s petition for certification to appeal, limited
to the following issue: ‘‘When a parent who has temporarily relinquished
custody seeks reinstatement of guardianship rights under . . . § 45a-611,
is there a constitutional presumption that reinstatement is in the best inter-
ests of the child, and, if so, does a heightened [standard] of proof apply
pursuant to Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d
599 (1982)?’’ In re Zakai F., 330 Conn. 957, 198 A.3d 584 (2018). Upon review
of the record and the claims raised before the Appellate Court, we now
conclude that the certified question is not an adequate statement of the issue
properly before this court. Specifically, the respondent had not temporarily
relinquished custody, but, after the Probate Court granted the petitioner’s
request for an order of immediate, temporary custody in 2014, approximately
two years later, the respondent agreed to a transfer of guardianship in 2016.
Accordingly, we reformulate the certified question as follows: ‘‘When a
parent who has agreed to a transfer of guardianship seeks reinstatement of
guardianship rights under . . . § 45a-611, is there a constitutional presump-
tion that reinstatement is in the best interests of the child, and, if so, does
a heightened standard of proof apply pursuant to Santosky v. Kramer, supra,455 U.S. 745?’’ See, e.g., State v. Skipwith, 326 Conn. 512, 516 n.4, 165 A.3d
1211 (2017) (court may reformulate certified question to conform to issue
actually presented and to be decided on appeal); State v. Ouellette, 295
Conn. 173, 183–84, 989 A.2d 1048 (2010) (same).
9
We agree with the Appellate Court that this issue was not preserved,
but we nevertheless review it pursuant to State v. Golding, supra, 213 Conn.
239–40. See footnote 7 of this opinion. We conclude that the respondent
has satisfied the first two prongs of Golding, and, therefore, we focus our
analysis on the third prong. Under the third prong, we consider whether
‘‘the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial . . . .’’ State v. Golding, supra, 240; see In re Yasiel
R., supra, 317 Conn. 781 (modifying third prong of Golding).
10
The guardian ad litem for the minor child argues that, even if a constitu-
tional presumption that reinstatement is in the best interests of the child
is generally required, it is not required under the facts of the present case.
He fails, however, to cite any legal authority in support of his position.
Accordingly, we deem that claim to be inadequately briefed and decline to
address it. See Estate of Rock v. University of Connecticut, 323 Conn. 26,
33, 144 A.3d 420 (2016) (‘‘Claims are inadequately briefed when they are
merely mentioned and not briefed beyond a bare assertion. . . . Claims are
also inadequately briefed when they . . . consist of conclusory assertions
. . . with no mention of relevant authority and minimal or no citations from
the record . . . .’’ (Internal quotation marks omitted.)).
11
We note that language similar to that of General Statutes (Rev. to 1977)
§ 17-62 (f) is presently codified at General Statutes § 46b-129 (n). We also
note that § 46b-129 (n) is similar to § 45a-611.
12
The concurring and dissenting justice asserts that the trial court’s finding
that ‘‘Zakai [did] not feel safe and secure in the [respondent’s] care’’ provides
a sufficient basis to conclude that the shared constitutional interests of
Zakai and the respondent in family integrity are not aligned. Indeed, the
concurring and dissenting justice also notes that 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,’’ and the child has likely established ‘‘emotional connections
and bonds with the individual who has been providing daily care to the
child . . . .’’ The concurring and dissenting justice reasons 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.’’ On the other hand, however, the
concurring and dissenting justice contends that the failure to reinstate guard-
ianship is not permanent. These two statements are seemingly at odds with
each other. Although a parent technically may continue to seek reinstatement
of guardianship pursuant to § 45a-611, if the child’s emotional connections
with the guardian grow stronger with each passing day, the parent will
never be successful at reinstating guardianship. This creates an effectively
permanent deprivation, which requires heightened safeguards to protect the
interests involved. See, e.g., Santosky v. Kramer, supra, 455 U.S. 758–61;
Lassiter v. Dept. of Social Services, 452 U.S. 18, 27, 101 S. Ct. 2153, 2160,
68 L. Ed. 2d 640 (1981).
13
The concurring and dissenting justice states that we do not appropriately
balance the interests of the child with those of the parent, suggesting that
by adopting a heightened standard of proof, we create an insurmountable
obstacle to the party opposing reinstatement. We disagree. The presumption
we adopted in part I of this opinion is a rebuttable one. Numerous factors,
most notably the safety of the child, could be sufficient to rebut the presump-
tion by clear and convincing evidence. This strikes the appropriate balance
between the fundamental right to family integrity and a recognition that
circumstances may still exist that render reinstatement not in the best
interests of the child.
14
The express statutory protection for the safety of children contained
in § 45a-611 (b)—that the court determine that the grounds for removal no
longer exist—is not included in the third-party custody statute that was at
issue in Fish v. Fish, supra, 285 Conn. 24. In Fish, this court held that a
third party must, among other things, demonstrate that parental custody
would be detrimental to the child. Id., 89. There is no such requirement in
a reinstatement proceeding. As a result, reinstatement proceedings are also
distinguishable from third-party custody proceedings.
15
Although the extent of deprivation is one factor to consider, a bright-
line rule pursuant to which only permanent termination of parental rights
cases would be subject to a clear and convincing standard is inappropriate.
As the United States Supreme Court has explained, ‘‘[u]nlike the [c]ourt’s
[right to counsel] rulings, its decisions concerning constitutional burdens
of proof have not turned on any presumption favoring any particular stan-
dard. To the contrary, the [c]ourt has engaged in a straightforward consider-
ation of the factors identified in [Mathews v. Eldridge, supra, 424 U.S.
335] to determine whether a particular standard of proof in a particular
proceeding satisfies due process.’’ Santosky v. Kramer, supra, 455 U.S. 754.
16
We note that the facts of this case render the trial court’s decision
tantamount to a permanent deprivation of the respondent’s parental rights.
Not only did the court deny reinstatement of guardianship to the respondent,
but it also terminated visitation—vesting any mother-son visits in the sole
discretion of the petitioner, who had a strained relationship with the respon-
dent. As a result, the circumstances that might allow the respondent to
successfully regain guardianship of Zakai are almost completely beyond her
control. The effect of the trial court’s decision is to indefinitely—perhaps
permanently—deprive the respondent of guardianship rights. Indeed, the
trial court explicitly considered permanency as an important part of its
decision. The court explained that ‘‘Zakai is screaming for permanency; he
wants and needs to know his one ‘forever’ home.’’ Even if circumstances
change in a manner that might warrant reinstatement, the respondent has
already lost her constitutional interest in family integrity for several years.
The time Zakai and the respondent will be separated will only continue to
increase, further solidifying the ‘‘permanency’’ of Zakai’s arrangement with
the petitioner and decreasing the chance that the respondent will be able
to reinstate guardianship. As such, this case is effectively a permanent
transfer of guardianship under General Statutes § 45a-616a. Significantly,
to establish a permanent guardianship, the court must find by clear and
convincing evidence that the establishment of a permanent guardianship
is in the best interests of the child. See General Statutes § 45a-616a (a).
17
We recognize that, in this case, the trial court did take steps to increase
visitation between Zakai and the respondent. Section 45a-611, however, does
not require the court, the state, or the third party to take any such steps to
aid in the reunification.
18
This conclusion is consistent with the legislative history of the removal
statute, § 45a-610. For example, during hearings on the bill adopting the
clear and convincing standard for removal of a parent as guardian, Raphael
Podolsky, an attorney with the Legal Services Training and Advocacy Project,
testified that the clear and convincing standard was used because the depri-
vation of parental rights in a temporary removal, although not permanent,
could be of a substantial duration. See Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 2, 1983 Sess., p. 764 (‘‘Because this bill builds in a
hearing provision, a temporary removal may be for a very extensive period
of time. You’re not just talking [thirty] days, you may be talking months
and months and months. And it seems to me when you’re talking those
terms, that you really ought to be using [the] clear and convincing [stan-
dard].’’ (Emphasis added.)). Viewing the standard in terms of reinstatement,
Representative Richard D. Tulisano noted the concern that a parent seeking
reinstatement should not face a high standard of proof. See id., p. 757 (if
parent voluntarily gives up guardianship, ‘‘[i]n order to come back and take
the child back, we don’t want the parent put in a situation where they would
have to show that the temporary guardian has to be removed, has to show
clear [and] convincing [evidence]’’).
19
Given our conclusion that due process requires the application of the
clear and convincing standard of proof, we need not address the respondent’s
request that we use our supervisory authority to adopt a heightened standard
of proof.
20
We recognize that there are some jurisdictions that have applied the
preponderance of the evidence standard. See, e.g., In re D.I.S., 249 P.3d
775, 786 (Colo. 2011); In re Guardianship of David C., 10 A.3d 684, 686
(Me. 2010); In re Guardianship of Barros, 701 N.W.2d 402, 409 (N.D. 2005),
overruled on other grounds by In re G.L., 915 N.W.2d 685 (N.D. 2018).
Because we conclude that the preponderance of the evidence standard does
not adequately protect the fundamental right to family integrity, we are not
persuaded by these jurisdictions and decline to adopt their reasoning.
21
Although we do not take a position on whether the petitioner would
be able to rebut the presumption by clear and convincing evidence, we note
that Zakai’s ‘‘less than ideal behavior’’ is unfortunate but that ‘‘some level
of stress and discomfort may be warranted when the goal is reunification
of the child with the parent.’’ (Internal quotation marks omitted.) Boddie
v. Daniels, supra, 288 Ga. 146.