In re Avirex R. ( 2014 )

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IN RE AVIREX R.*
(AC 36291)
Sheldon, Prescott and Bear, Js.
Argued May 12—officially released July 16, 2014**
(Appeal from Superior Court, judicial district of
Hartford, Juvenile Matters, Burgdorff, J.)
Joshua Michtom, assistant public defender, for the
appellant (respondent mother).
Susan T. Pearlman, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Robert J. Moore, for the minor child.
Opinion
PRESCOTT, J. The respondent mother, Sara M.,
appeals from the judgment of the trial court transferring
guardianship of her minor son, Avirex R., from the peti-
tioner, the Commissioner of Children and Families, to
the child’s paternal aunt, Emma G.1 On appeal, the
respondent claims that the court erred by misapplying
the statute governing revocations of commitment, and
by failing to afford her a presumption of fitness. For
the reasons we will set forth, the judgment is affirmed.
The following facts and procedural history are neces-
sary for our resolution of these claims. Avirex was born
on September 21, 2011. Because Avirex had opiates in
his system at birth, the petitioner placed a ninety-six
hour hold on him.2 On September 29, 2011, within the
period of the ninety-six hour hold, the petitioner filed
a neglect petition on behalf of Avirex and a motion for
an order of temporary custody. The court, Hon. William
L. Wollenberg, judge trial referee, granted ex parte the
motion for an order of temporary custody and ordered
specific steps for reunification for both parents. Upon
the child’s release from the hospital on September 29,
2011, the petitioner placed him with his paternal aunt,
Emma G., and he has remained in her care since his
release.3
On October 7, 2011, after an opportunity for each of
the parties to be heard by the court, Keller, J., the
court’s initial grant of the motion for an order of tempo-
rary custody was sustained by the court. Amended spe-
cific steps were ordered to facilitate the respondent’s
reunification with Avirex. The respondent did not com-
ply with all of the steps. For example, she did not
comply with the requirement to continue substance
abuse and mental health treatment.
The respondent and the father entered pleas of nolo
contendere as to the neglect petition, which the court
accepted.4 Both parents, however, contested the dispo-
sition of commitment, and that matter was tried to the
court, Burgdorff, J., on March 8, 2012. Also on March
8, 2012, the court heard a motion for transfer of guard-
ianship filed by the respondent seeking placement of
Avirex with his maternal grandmother.
On March 14, 2012, the court denied the respondent’s
motion to transfer guardianship to the child’s maternal
grandmother, adjudicated Avirex neglected pursuant to
General Statutes § 46b-120 (6) (B),5 and committed him
to the care and custody of the petitioner. Avirex
remained in the care of Emma G., and on May 24, 2013,
the petitioner authorized a subsidized guardianship for
Emma G., which was later approved by the court.6 The
respondent did not appeal from the denial of her motion
to transfer guardianship or the court’s order of com-
mitment.7
On June 20, 2013, the petitioner filed a motion to
modify disposition pursuant to General Statutes § 46b-
129 and Practice Book § 34a-1, and a motion to revoke
commitment and transfer guardianship.8 Both motions
sought to end the commitment of Avirex to the peti-
tioner, and to transfer guardianship of him to Emma G.
In response, the respondent filed a motion to revoke
commitment on June 25, 2013, in which she objected
to the petitioner’s request to transfer guardianship. She
also requested in her motion that the court order that
Avirex be returned to her custody.
On November 1, 2013, the court conducted a hearing
on the petitioner’s motion to revoke commitment and
transfer guardianship. The court was prepared to con-
duct a hearing at the same time on the respondent’s
motion to revoke commitment, but she orally withdrew
her motion at the commencement of the hearing. The
respondent continued to object to the transfer of guard-
ianship to Emma G., and moved the court instead to
delay the transfer of guardianship and order a reunifica-
tion plan with her. The court did not grant the respon-
dent’s motion for a continuance and the hearing
proceeded.
On November 7, 2013, the court, Burgdorff, J.,
granted the petitioner’s motion to transfer guardianship
to Emma G. In its memorandum of decision, the court
cited subsection (m) of § 46b-129 as the applicable law
and found the following facts. The respondent had a
history of crime and domestic violence. After being
arrested on January 4, 2012, she left Connecticut, with-
out informing the court, to live with her parents and
brother in New Hampshire. The respondent tested posi-
tive for illegal substances several times prior to her
move to New Hampshire, and she was discharged from
the Wheeler Clinic and the Women and Children’s Sub-
stance Abuse Residential Program at New Life Center
for noncompliance with program rules.
Upon moving to New Hampshire, the respondent did,
to her credit, seek treatment from the Manchester Metro
Treatment Center for opiate dependence in September,
2012, and all of her drug tests since that time were
negative for illegal substances. Although the respondent
reported to the Department of Children and Families
(department) that she was engaging in mental health
treatment, she failed to authorize her mental health
provider to release her records so that the department
could confirm this treatment. Additionally, the depart-
ment was unable to verify the respondent’s source of
income. She had represented that she had applied for
social security disability benefits, but she failed to dis-
close the basis of her disability claims or any informa-
tion as to her current mental health diagnoses or
medications.
While living in New Hampshire, the respondent
engaged in twice monthly visitations with the child, and
traveled to Connecticut with Avirex’s maternal grand-
mother and half sibling in order to visit with Avirex.9
Significantly, since moving to New Hampshire, the
respondent has failed to inquire independently as to
Avirex’s well-being or to request additional visits.
Avirex, then two years old, had lived with Emma G.
since his discharge from the hospital after his birth. All
of his emotional and medical needs were being met by
Emma G., with whom Avirex had formed a significant
emotional bond. Emma G. had sufficient income to meet
his needs and provide stable housing. Finally, Emma
G. had been compliant with Avirex’s visits with the
respondent, the child’s father, and the maternal grand-
mother and siblings.
In light of those findings, none of which the respon-
dent has challenged as clearly erroneous, the court con-
cluded: ‘‘[The petitioner] has met [her] burden of
proving by a fair preponderance of the evidence that
the cause for commitment of Avirex no longer exists
in that it is no longer in his best interest to continue
with the commitment. Avirex has resided with his pater-
nal aunt since October 11, 2011, a period of over two
years. Avirex is in a stable and loving home, and the
paternal aunt appears to be devoted to him. She is
committed to providing for Avirex’s psychological,
social emotional and medical needs. He is happy in the
placement. The court further finds that the paternal
aunt, Emma G., is a suitable and worthy guardian, and
that such a disposition is in . . . Avirex’s best interest,
and most appropriately addresses his need for perma-
nency. To disrupt his placement with his paternal aunt
would be contrary to his best interest. . . . [Although]
the court recognizes that [the respondent] has been
successfully engaged in her substance abuse treatment
in New Hampshire, the court is troubled by [the respon-
dent’s] refusal to allow the disclosure of her mental
health diagnoses and medications. Further, [the respon-
dent] is clearly not self-sufficient as she relies com-
pletely on [the] maternal grandmother for financial and
housing support. No evidence was presented as to [the
respondent’s] completion of parenting classes. The
court, therefore, further finds that it would not be in
Avirex’s best interest to consider reunification with [the
respondent] at this time.’’
The court granted the petitioner’s motions to open
the disposition of commitment and to transfer guardian-
ship, and ordered that the guardianship of Avirex be
transferred from the petitioner to Emma G. The court
directed Emma G. ‘‘to allow [the respondent] such visi-
tation as she deems to be in Avirex’s best interest,’’ and
referred disputes concerning visitation to the family
court. This appeal followed.
On appeal, the respondent claims that the court mis-
applied § 46b-129 (m). Specifically, she argues that sub-
section (m) of § 46b-129 requires the court to make a
finding that the cause for commitment no longer exists,
and that, after making that finding, the court must pre-
sume that the parent is fit to regain custody and that
it would be in the best interest of the child to be returned
to the parent. The respondent argues that the court
failed to make the required finding that the cause for
commitment no longer existed and failed to apply the
required presumption of fitness in violation of § 46b-
129 (m).
We conclude that the court erred by applying subsec-
tion (m) of § 46b-129 because the petitioner was not
seeking to revoke commitment and return Avirex to
the respondent, but instead sought to transfer guardian-
ship to a third party. That procedure is properly gov-
erned by subsection (j) of § 46b-129. We further
conclude, however, that the court’s judgment need not
be reversed, as the court still engaged in the analysis
otherwise required by subsection (j) of § 46b-129.
We begin our discussion with the standard of review.
In order to resolve the respondent’s claims on appeal,
it is necessary to construe and harmonize various sub-
sections of § 46b-129 and the relevant provisions of our
rules of practice implementing that statute. See Practice
Book §§ 35a-16, 35a-12A and 35a-20. ‘‘[I]ssues of statu-
tory construction raise questions of law, over which we
exercise plenary review. . . . The process of statutory
interpretation involves the determination of the mean-
ing of the statutory language as applied to the facts of
the case, including the question of whether the language
does so apply. . . . When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
The interpretive construction of the rules of practice
is to be governed by the same principles as those regu-
lating statutory interpretation.’’ (Citation omitted; inter-
nal quotation marks omitted.) In re A.R., 123 Conn.
App. 336, 339, 1 A.3d 1184 (2010).
Accordingly, we turn to the statutory scheme govern-
ing the disposition of children who have been found to
be abused or neglected. After a child has been found
to be neglected or abused, § 46b-129 (j) (2) grants a
court four dispositional options: ‘‘[T]he court may (A)
commit such child or youth to the Commissioner of
Children and Families, and such commitment shall
remain in effect until further order of the court, except
that such commitment may be revoked or parental
rights terminated at any time by the court; (B) vest such
child’s or youth’s legal guardianship in any private or
public agency that is permitted by law to care for
neglected, uncared-for or abused children or youths or
with any other person or persons found to be suitable
and worthy of such responsibility by the court, includ-
ing, but not limited to, any relative of such child or
youth by blood or marriage; (C) vest such child’s or
youth’s permanent legal guardianship in any person
or persons found to be suitable and worthy of such
responsibility by the court, including, but not limited
to, any relative of such child or youth by blood or
marriage in accordance with the requirements set forth
in subdivision (5) of this subsection; or (D) place the
child or youth in the custody of the parent or guardian
with protective supervision by the Commissioner of
Children and Families subject to conditions established
by the court.’’
If the court commits a child to the petitioner, the
petitioner must present to the court a permanency plan
within nine months of placement of the child or youth
in the care or custody of the petitioner. General Statutes
§ 46b-129 (k) (1). ‘‘At a permanency hearing . . . the
court shall approve a permanency plan that is in the
best interests of the child or youth and takes into consid-
eration the child’s or youth’s need for permanency. . . .
Such permanency plan may include the goal of (A)
revocation of commitment and reunification of the
child or youth with the parent or guardian, with or
without protective supervision; (B) transfer of guard-
ianship or permanent legal guardianship; (C) long-
term foster care with a relative licensed as a foster
parent; (D) filing of termination of parental rights and
adoption; or (E) another planned permanent living
arrangement ordered by the court, provided the Com-
missioner of Children and Families has documented a
compelling reason why it would not be in the best
interests of the child or youth for the permanency plan
to include the goals in subparagraphs (A) to (D), inclu-
sive, of this subdivision. Such other planned permanent
living arrangement may include, but not be limited to,
placement of a child or youth in an independent living
program or long term foster care with an identified
foster parent.’’ (Emphasis added.) General Statutes
§ 46b-129 (k) (2). Thus, two of the separate and distinct
statutory disposition options available to the court are
(1) revocation of commitment and reunification with
the child’s parent or former guardian (with or without
protective supervision), or (2) transfer of guardianship
to a party other than the child’s parent or former
guardian.
In the present case, the substance of the motions filed
by the petitioner sought transfer of legal guardianship of
Avirex from the petitioner to his paternal aunt.10 See
In re Cameron C., 103 Conn. App. 746, 751, 930 A.2d 826
(2007) (court looks at substance of motion to determine
which statute is applicable), cert. denied, 285 Conn.
906, 942 A.2d 414 (2008). The motions, by their terms,
did not seek to revoke the commitment of Avirex to
the petitioner so that Avirex could be reunified with
his parent.11 Accordingly, the only issue before the court
in this case was whether guardianship of Avirex should
be transferred to his paternal aunt. If the court were
to have answered that question in the negative, Avirex
would have remained committed to the petitioner until
some other appropriate disposition could be proposed
and approved by the court as part of a permanency plan.
With this statutory background in mind and in light
of the specific relief sought in the motion before the
court, we next address whether the trial court improp-
erly addressed the petitioner’s motion pursuant to sub-
section (m) of § 46b-129, or instead, should have
analyzed the motion pursuant to subsection (j) of
§ 46b-129.
Subsection (j) (3) of § 46b-129 provides in relevant
part: ‘‘If the court determines that the commitment
should be revoked and the child’s . . . legal guardian-
ship . . . should vest in someone other than the
respondent parent, parents or former guardian . . .
there shall be a rebuttable presumption that an award
of legal guardianship . . . upon revocation to . . .
any relative who is licensed as a foster parent for such
child or youth, or who is, pursuant to an order of the
court, the temporary custodian of the child or youth at
the time of the revocation . . . shall be in the best
interests of the child or youth and that such relative is
a suitable and worthy person to assume legal guardian-
ship . . . . The presumption may be rebutted by a pre-
ponderance of the evidence that an award of legal
guardianship to . . . such relative would not be in the
child’s . . . best interests and such relative is not a
suitable and worthy person. . . .’’
Subsection (m) of § 46b-129 provides in relevant part:
‘‘The commissioner, a parent or the child’s attorney
may file a motion to revoke a commitment, and, upon
finding that cause for commitment no longer exists,
and that such revocation is in the best interests of such
child or youth, the court may revoke the commitment
of such child or youth. . . .’’
An obvious difference between these two subsections
is that subsection (j) contains specific language refer-
encing a transfer of guardianship to a party other than
the child’s or youth’s parent or former legal guardian
and sets forth a presumption as to the individuals, such
as other relatives, who should then be given custody,
while subsection (m) makes no mention of any individ-
ual other than the petitioner, a parent or the child’s
attorney. Instead, subsection (m) is focused only on
whether the child’s or youth’s commitment should be
revoked without reference to a transfer of guardianship
to a party other than the parent or former guardian.12
As a matter of logic, if the child’s or youth’s commitment
to the petitioner is revoked by the court without a
concomitant transfer of guardianship to a third party,13
then the child must be reunified with the parent or
former legal guardian (with or without protective super-
vision) as contemplated by the permanency plan option
set forth in § 46b-129 (k) (2) (A) (‘‘revocation of commit-
ment and reunification of the child or youth with the
parent or guardian’’).
Accordingly, we conclude that the legislature
intended that a motion, like the one filed here by the
petitioner, seeking to transfer guardianship of a child
or youth from the petitioner to an individual other than
the parent or former guardian, should be adjudicated
by the court pursuant to subsection (j) of § 46b-129.
This conclusion is buttressed by reference to Practice
Book § 35a-16, which provides in relevant part that
‘‘[u]nless filed by the commissioner of the department
of children and families, any modification motion to
return a child or youth to the custody of the parent
without protective supervision shall be treated as a
motion for revocation of commitment.’’
Our conclusion also finds support in our decision in
In re A.R., supra, 123 Conn. App. 336. One of the issues
in In re A.R. was whether the trial court improperly
treated a motion to transfer guardianship filed by an
intervenor as a motion for revocation of commitment.
Id., 337. In delineating the difference between subsec-
tion (j) and subsection (m) of § 46b-129, this court
stated: ‘‘The intervenor claims on appeal that the court
incorrectly treated her motion to transfer guardianship
as a motion to revoke commitment. She argues that
the language of § 46b-129 (j) treats motions to transfer
guardianship as separate and distinct from motions to
revoke commitment. In addition, she argues that Prac-
tice Book § 35a-16 indicates that only motions to modify
[disposition] that request that the custody of the child
revert to the custody of the parent are to be construed
as motions to revoke commitment. . . . We agree.’’
Id., 338–39.
Accordingly, it was improper for the court to treat the
petitioner’s motion to transfer guardianship to Avirex’s
paternal aunt as a motion to revoke commitment filed
pursuant to subsection (m) of § 46b-129. Instead, the
court should have treated the petitioner’s motion as
having been filed pursuant to subsection (j) of § 46b-
129. In light of this conclusion, it is unnecessary to
reach the respondent’s claim that the trial court did not
properly afford a presumption of fitness under subsec-
tion (m) of § 46b-129.14 Although we conclude that the
court improperly treated the petitioner’s motion under
an incorrect subsection of § 46b-129, we further con-
clude that the court nonetheless engaged in the proper
analysis and made the required findings necessary to
transfer guardianship from the petitioner to Emma G.
pursuant to § 46b-129 (j).
In order to properly grant a motion to transfer guard-
ianship under subsection (j) of § 46b-129, the court must
first determine whether it would be in the best interest
of the child for guardianship to be transferred from the
petitioner to the proposed guardian. See also Practice
Book § 35a-12A; In re Averiella P., 146 Conn. App. 800,
804, 81 A.3d 272 (2013) (applying best interest standard
to motion to transfer guardianship from petitioner to
child’s grandmother). In considering what is in the best
interest of the child, subsection (j) creates a rebuttable
presumption that if the proposed guardian is a member
of one of the enumerated groups of relatives or caregiv-
ers, such a transfer is in the child’s best interest. The
court must then find that the third party is a suitable
and worthy guardian. See General Statutes § 46b-129
(j); Practice Book § 35a-12A (‘‘the moving party has the
burden of proof that the proposed guardian is suitable
and worthy’’). Subsection (j) (3) of § 46b-129 also pro-
vides a rebuttable presumption that if the proposed
guardian is a relative of the child, and is either licensed
by the department as a foster parent, or has temporary
custody of the child when the motion to transfer guard-
ianship is heard by the court, such a relative is presumed
to be a suitable and worthy person to assume legal
guardianship.
Unlike subsection (m) of § 46b-129, neither subsec-
tion (j) of § 46b-129 nor Practice Book § 35a-12A pro-
vides a presumption of fitness for a parent or former
guardian (who may be opposing the motion). See foot-
note 8 of this opinion. This is because a motion to
transfer guardianship is simply dispositional in nature,
and does not require the court to review the underlying
cause for commitment, which has already been judi-
cially determined during an earlier phase of the pro-
ceeding. Compare Practice Book § 35a-12A (a)
(‘‘[m]otions to transfer guardianship are dispositional
in nature, based on the prior adjudication’’) with § 46b-
129 (m) (requiring court to review cause for commit-
ment and conclude that it no longer exists before revok-
ing commitment of child). Accordingly, it is important
to note that a transfer of guardianship pursuant to sub-
section (j) of § 46b-129 does not terminate the respon-
dent parent’s or former guardian’s relationship with the
child. If a court orders, as it did here, legal guardianship
of a child or youth to be vested in a suitable and worthy
person pursuant to subsection (j) of § 46b-129, the
respondent parents or former guardians of the child or
youth are not left without recourse. Pursuant to § 46b-
129 (n), the respondent parents or former guardian may
file a petition to reinstate guardianship of the child or
youth in such parent or legal guardian.15 See also Prac-
tice Book § 35a-20.
Because Emma G., Avirex’s paternal aunt, was, by
order of the court, his temporary custodian at the time
the court heard both of the petitioner’s motions, there
existed a rebuttable presumption that Emma G. was a
suitable and worthy guardian, and that a transfer of
guardianship from the petitioner to Emma G. was in
Avirex’s best interest.16 See Practice Book § 35a-12A
(b). It was, therefore, the respondent’s burden to rebut
the presumption by demonstrating by a preponderance
of the evidence that Emma G. was not a suitable and
worthy guardian, or that it was not in Avirex’s best
interest for guardianship to be transferred from the
petitioner to Emma G.
Although the court’s memorandum of decision
focuses at least in part on the respondent’s current
fitness to parent, the court also specifically found that
the transfer of guardianship from the petitioner to
Emma G. was in Avirex’s best interest, and that Emma
G. was a suitable and worthy guardian. The respondent
has not challenged these findings, and the record ade-
quately supports them. We, therefore, conclude that the
court made the requisite findings, pursuant to § 46b-
129 (j), that were necessary to transfer guardianship of
Avirex from the petitioner to Emma G. Accordingly, we
affirm the trial court’s judgment.
The judgment is affirmed.
In this opinion the other judges 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 having a proper interest therein and upon
order of the Appellate Court.
** July 16, 2014, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The father, Hector R., is not a party to this appeal. At the hearing before
the trial court, the father’s counsel represented to the court that he did not
object to the petitioner’s motion to modify disposition, and that he agreed
with the transfer of guardianship from the petitioner to Emma G.
2
General Statutes § 17a-101g provides in relevant part: ‘‘(e) If the Commis-
sioner of Children and Families, or the commissioner’s designee, has proba-
ble cause to believe that the child or any other child in the household is in
imminent risk of physical harm from the child’s surroundings and that
immediate removal from such surroundings is necessary to ensure the child’s
safety, the commissioner, or the commissioner’s designee, shall authorize
any employee of the department or any law enforcement officer to remove
the child and any other child similarly situated from such surroundings
without the consent of the child’s parent or guardian. The commissioner
shall record in writing the reasons for such removal and include such record
with the report of the investigation conducted under subsection (b) of
this section.
‘‘(f) The removal of a child pursuant to subsection (e) of this section
shall not exceed ninety-six hours. During the period of such removal, the
commissioner, or the commissioner’s designee, shall provide the child with
all necessary care, including medical care, which may include an examina-
tion by a physician or mental health professional with or without the consent
of the child’s parents, guardian or other person responsible for the child’s
care, provided reasonable attempts have been made to obtain consent of
the child’s parents or guardian or other person responsible for the care of
such child. During the course of a medical examination, a physician may
perform diagnostic tests and procedures necessary for the detection of child
abuse or neglect. If the child is not returned home within such ninety-
six-hour period, with or without protective services, the department shall
proceed in accordance with section 46b-129. . . .’’
3
Emma G. is licensed by the department as a foster parent.
4
The respondent entered her plea of nolo contendere on October 7, 2011,
and the father entered his plea of nolo contendere on November 8, 2011.
5
General Statutes § 46b-120 (6) provides in relevant part that ‘‘[a] child
or youth may be found ‘neglected’ who, for reasons other than being impover-
ished . . . (B) is being denied proper care and attention, physically, educa-
tionally, emotionally, or morally . . . .’’
6
Pursuant to General Statutes § 17a-126 (a), the petitioner is authorized
to establish a subsidized guardianship program for the benefit of children
living in foster care with relatives after the child has been in the state’s care
for six months.
7
The court’s order of commitment was that ‘‘[t]he child . . . is committed
until further order of the court to the [petitioner] who shall be the guardian
of the child . . . according to the statutes in such cases. Commitment is
effective 03/14/2012.’’ After the commitment, therefore, neither the respon-
dent nor the father were guardians of Avirex.
8
Although the petitioner brought her motion to modify disposition pursu-
ant to § 46b-129, she did not specify the subsection of the statute upon
which she sought relief. We urge the petitioner to indicate in the future the
specific subsection of § 46b-129 upon which she seeks relief in order to
help prevent confusion over the relief sought and the appropriate legal
standard that should be applied.
9
The respondent also had a documented history with Child Protective
Services in New Hampshire. Guardianship of her other child, Avirex’s half
sibling, previously was transferred to the maternal grandmother through
the Probate Court in New Hampshire due to the respondent’s substance
abuse, prostitution, neglect, transience and domestic violence.
10
The only motions before the court were the petitioner’s motions to
modify disposition, and to revoke commitment and transfer guardianship.
Both motions sought to transfer the guardianship of Avirex from the peti-
tioner to his paternal aunt, Emma G.
11
Indeed, an earlier motion to revoke the commitment of Avirex to the
petitioner so that he could be reunified with the respondent was withdrawn
by the respondent.
12
We have previously held that in order to grant a motion to revoke
commitment under subsection (m) of § 46b-129, ‘‘the respondent must first
prove that no cause for commitment presently exists. Second, [the petitioner]
must fail in her burden to establish that it would be in the best interests of
the [child] to remain committed.’’ In re Patricia C., 93 Conn. App. 25, 31–32,
887 A.2d 929, cert. denied, 277 Conn. 931, 896 A.2d 101 (2006).
13
We note that, as a practical matter, upon a finding by the court that
guardianship of a child should be transferred from the petitioner to a third
party, the court must necessarily revoke the commitment of that child to
the petitioner so that the transfer may be effectuated.
14
We do not disagree with the respondent that subsection (m) of § 46b-
129 and Practice Book § 35a-14A give rise to a rebuttable presumption that,
upon a finding that the cause for the child’s commitment no longer exists,
the court should ordinarily order reunification and return custody of the
child to the parent or former guardian. If a motion to revoke commitment
is properly filed under subsection (m) because it seeks to reunify the child
with a parent or former guardian, the parent or former guardian should
presumptively regain custody if the cause for commitment no longer exists,
unless the department can establish that reunification is not in the best
interest of the child. It is this statutory burden shifting analysis that the
respondent claims the court failed to utilize.
15
The statute also provides that ‘‘[n]o such petition may be filed more
often than once every six months.’’ General Statutes § 46b-129 (n).
16
As we noted previously, Emma G. is licensed by the department as a
foster parent. See footnote 3 of this opinion. Pursuant to Practice Book
§ 35a-12A (b), the court may presume that she was a suitable and worthy
person to assume legal guardianship on this basis as well.