In re Paulo T. ( 2022 )

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IN RE PAULO T.*
(AC 45111)
Bright, C. J., and Moll and Alexander, Js.
Syllabus
The respondent father appealed to this court from, inter alia, the judgment
of the trial court granting the motion for reinstatement of guardianship
rights filed by the petitioner mother with respect to their minor son, P.
P lived with the mother for most of his life. After she pleaded nolo
contendere to the allegation that P had been uncared for due to her
homelessness, the trial court vested primary custody and sole guardian-
ship of P in the father and ordered the mother to comply with certain
specific steps, including participating in substance abuse treatment and
obtaining adequate housing and legal income. Following her participa-
tion in an intensive outpatient treatment program and her residence in
a sober house, the trial court granted the mother’s motion for reinstate-
ment of her guardianship rights and ordered that the parties have joint
guardianship of P, with primary physical custody vested in the mother.
The trial court also issued orders with respect to the father’s visitation
rights. Thereafter, the father filed a motion to open the judgment on
the ground that the mother had failed to comply with the trial court’s
visitation orders. The trial court declined to exercise jurisdiction over
the motion, and the father appealed to this court. Held:
1. Contrary to the father’s claim, the trial court did not apply a presumption
that reinstatement of the mother’s rights was in the best interests of P:
the presumption established by our Supreme Court in In re Zakai F.
(336 Conn. 272), that reinstatement is in the best interests of the child
when a parent who has filed a motion to reinstate his or her guardianship
rights has demonstrated that the reasons that led to the removal of his
or her guardianship rights have been resolved satisfactorily, did not
apply to this case because it was a dispute between two parents and
the presumption applies only when the current guardian is a nonparent;
moreover, although the trial court mentioned the presumption in its
decision, it did not apply the presumption in determining whether the
restoration of the mother’s guardianship rights was in P’s best interests
but, instead, carefully considered and applied the relevant statutory
(§ 46b-56 (c)) criteria.
2. The trial court correctly identified the factors that led to the removal
of the mother’s rights and found that such factors had been resolved
satisfactorily: a review of the entire record supports the trial court’s
determination that the mother lost her guardianship rights due to her
homelessness and alcohol abuse, despite the record also having refer-
enced other matters; moreover, the trial court’s finding regarding the
satisfactory resolution of those issues was not clearly erroneous because
it was supported by evidence of the mother’s sobriety, full-time employ-
ment and stable housing situation, and the father’s arguments to the
contrary constituted a request for this court to reweigh the evidence,
which it could not do.
3. The evidence was sufficient to support the trial court’s findings that the
restoration of the mother’s guardianship rights and transfer of custody
to the mother were in P’s best interests: the best interests determination
was not based on a single factor but, rather, on consideration of the
factors set forth in § 46b-56 (c); moreover, the evidence demonstrated
that, contrary to the father’s claims and despite the mother’s difficulties,
P had done well in her care prior to the loss of her guardianship rights
and the transfer of custody would not result in a loss of P’s educational
opportunities, as other public schools had programs similar to the gifted
and talented program in which P had been enrolled while residing with
the father.
4. The trial court properly declined to exercise its jurisdiction to consider
the arguments set forth in the father’s motion to open the judgment:
after the trial court reinstated the mother’s guardianship rights and
issued orders regarding visitation, it explicitly stated that it would not
retain jurisdiction over any future visitation matters, which would need
to be addressed in the family court; accordingly, the father was required
to present any visitation matters to the family court and was required
to file a motion to modify custody, rather than a motion to open, in
order to pursue his request that the court award him sole custody of P.
Argued March 10—officially released July 18, 2022**
Procedural History
Motion for reinstatement of guardianship rights, filed
by the petitioner mother with respect to her minor child,
brought to the Superior Court in the judicial district of
Fairfield, Juvenile Matters, where the matter was tried
to the court, Maronich, J.; judgment granting the
motion and issuing orders with respect to the visitation
rights of the respondent father; thereafter, the court,
Maronich, J., dismissed the respondent’s motion to
open the judgment, from which the respondent
appealed to this court. Affirmed.
Benjamin M. Wattenmaker, assigned counsel, for the
appellant (respondent father).
Robert C. Koetsch, assigned counsel, for the appellee
(petitioner mother).
Opinion
ALEXANDER, J. The respondent father, Horace W.,
appeals from the granting of the motion for reinstate-
ment of guardianship rights filed by the petitioner
mother, Mae T., with respect to their minor child, Paulo
T. On appeal, the respondent claims that the court (1)
improperly applied a presumption that reinstatement
of the petitioner’s guardianship rights was in the best
interests of Paulo, (2) erroneously found that the factors
that had led to the removal of the petitioner’s guardian-
ship rights had been resolved satisfactorily, (3) errone-
ously found that reinstatement of the petitioner’s guard-
ianship rights was in the best interests of Paulo, and
(4) improperly dismissed the respondent’s motion to
open the judgment. We disagree with these claims and,
accordingly, affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. On February 17, 2019, the Depart-
ment of Children and Families (department) received
a referral alleging that then ten year old Paulo was
physically neglected as a result of the petitioner’s home-
lessness and abuse of alcohol. The Commissioner of
Children and Families (commissioner) subsequently
filed a petition for an order of temporary custody and
a petition alleging that Paulo had been neglected and
uncared for. During the department’s investigation, the
petitioner admitted that she had been evicted from her
apartment, Paulo had not been attending school, and
she had consumed alcohol for coping purposes in the
presence of Paulo. The respondent indicated that he
lived in a senior citizen building and could not be a
resource for Paulo. On February 26, 2019, the court,
Randolph, J., issued an order vesting temporary cus-
tody of Paulo in the respondent’s adult daughter,
Tachelle C.1
On June 10, 2019, the petitioner pleaded nolo conten-
dere to the allegation that Paulo had been uncared
for due to her homelessness.2 The court issued orders
vesting primary custody and sole guardianship of Paulo
in the respondent.3 Additionally, the court ordered the
petitioner to comply with certain specific steps, includ-
ing participating in substance abuse treatment and
obtaining adequate housing and legal income.
On November 20, 2020, the petitioner filed a motion
for reinstatement of her guardianship rights4 with the
Superior Court for juvenile matters.5 The petitioner also
alleged that Paulo had been physically abused by the
respondent. The petitioner sought full legal and physical
custody. On February 22, 2021, the department com-
pleted a court study for the reinstatement of guardian-
ship.6 It recommended that (1) the court grant the peti-
tioner’s motion to reinstate her guardianship rights, (2)
the court grant the respondent regular contact and visi-
tation, and (3) the parties participate in counseling to
address their communication and interactions with
respect to Paulo.
The court, Maronich, J., conducted a hearing on Sep-
tember 7 and 8, 2021. After considering the testimony
and evidence, and hearing the arguments of counsel,
the court issued an oral decision. At the outset, the
court noted that Paulo had been removed from the
petitioner’s care due to ‘‘the immediate problem of
homelessness, secondary to a more serious problem
of alcohol abuse . . . .’’ The court then discussed the
procedural context of the petitioner’s motion: ‘‘The
instant petition for restoration of parental guardianship
was filed by [the petitioner] on November 20, 2020. In
order to prevail on this petition, a parent must demon-
strate 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 reinstate-
ment of guardianship rights is in the best interest of
the child.’’
The court next summarized the evidence and made
findings with respect to whether the petitioner had
resolved the reasons for her removal as a guardian.
Specifically, the court noted that the petitioner had
entered an intensive outpatient therapy program in
March, 2019, and transitioned to a ‘‘sober house’’ in
April, 2019, where she remained until September 5,
2020. The court stated that her record at both programs
was exemplary and that the house manager of the sober
house described the petitioner as ‘‘a model resident.’’
The court also indicated that the petitioner continued
to attend Alcoholics Anonymous (AA) meetings and
had maintained her sobriety since January, 2020. Addi-
tionally, the petitioner obtained full-time employment,
had secure housing, and was in a stable relationship.
In conclusion, the court stated: ‘‘This court is under no
illusions about [the petitioner’s] past history and long
struggle with alcohol. The court, however, is satisfied
that she has demonstrated a reasonable period of sobri-
ety and is able to meet the needs of . . . Paulo. The
court finds that the petitioner has met her burden of
proof, that the causes for removal of Paulo from her
care have been satisfactorily resolved.’’
The court then addressed the best interests of Paulo
and considered the relevant factors set forth in General
Statutes § 46b-56.7 It found that both parents were pre-
pared to meet Paulo’s needs. The court noted that Paulo
consistently had expressed a desire to live with the
petitioner and that for the majority of his life he had
been in the care of the petitioner. In its findings, the
court noted that there had been extended periods of
time with little contact between Paulo and the respon-
dent. The court acknowledged, however, that during
the past two years, the respondent had ‘‘stepped up to
the plate during very difficult times and provided
[Paulo] a home.’’ The court indicated that, given the
petitioner’s sobriety, long-term relationship, stable
housing situation, and employment, she would be able
to meet Paulo’s needs and provide him with stability.
The court found that Paulo would be able to transfer
to a school in Milford, where the petitioner lived.
Finally, the court determined that Paulo would be able
to transition back to the petitioner’s care and not suffer
undue stress in doing so.
‘‘In balance, this court finds that it is in Paulo’s best
interest for physical custody to be vested in [the peti-
tioner]. In reaching this difficult decision, the court is
most persuaded by the length of time in [the petition-
er’s] care prior to removal, the demonstrated devotion
she has shown in overcoming her demons, the recom-
mendation of three separate [department] workers and
the guardian ad litem, and finally by Paulo’s own
expressed wishes. Paulo is far more intelligent and
grown up than his [age] would suggest. As a child
becomes a teenager and [a] young adult, the court
accords a greater weight to his or her wishes.
‘‘The court is also—also knows that each parent here
has a vastly different style of parenting. As Paulo enters
his teenage years, the court believes that primary physi-
cal custody with [the petitioner] would be a better fit.
The court would be remiss if it did not acknowledge
that [the respondent] has been a good father to his son,
Paulo. . . . For the following reasons, the court will
grant this petition, [the petitioner and the respondent]
will have joint guardianship of Paulo, primary physical
custody will be vested in [the petitioner].’’
After delivering its oral decision, the court recessed
to provide the parties with the opportunity to come to
an agreement with respect to visitation. After resuming
the proceeding, the court noted on the record that the
parties had been unable to reach an agreement. The
court issued orders with respect to the issue of visita-
tion.8 At the conclusion of the proceeding, the court
stated: ‘‘This court will not retain jurisdiction over any
visitation issues. Any disputes or necessary modifica-
tions will be addressed to the family court.’’
On September 27, 2021, the respondent filed a motion
to open the judgment on the ground that the petitioner
had failed to comply with the court’s visitation orders.
The respondent additionally alleged that he had been
prevented from contacting and communicating with
Paulo. The respondent also filed a motion for contempt
on that same day, in which he alleged that the petitioner
had violated the court’s orders by preventing him from
visiting with Paulo. In her October 4, 2021 objection to
the motion to open, the petitioner countered, inter alia,
that the respondent’s motion constituted an improper
attempt to relitigate the matter.
The court held a hearing on the respondent’s motions
on October 28, 2021. Pursuant to its previous order
stating that it would not retain jurisdiction, the court
dismissed the respondent’s contempt motion. The court
also declined to exercise jurisdiction over the respon-
dent’s motion to open the judgment. This appeal fol-
lowed.9 Additional facts will be set forth as necessary.
I
The respondent first claims that the court improperly
applied a presumption that reinstatement of the peti-
tioner’s guardianship rights was in the best interests of
Paulo as established by our Supreme Court in In re
Zakai F., 336 Conn. 272, 255 A.3d 767 (2020). Specifi-
cally, he argues that the presumption regarding best
interests, and the requirement that the party opposing
the reinstatement of guardianship must rebut this pre-
sumption by clear and convincing evidence, do not
apply in cases between two parents and that the court
improperly applied this presumption in the present
case. Although we agree with the respondent that the
presumption set forth in In re Zakai F., supra, 288,
does not apply in disputes involving two parents, we
nevertheless conclude that the court did not apply this
presumption in favor of the petitioner in the present
case.
We begin our analysis by setting forth the applicable
standard of review. The respondent contends that this
claim involves the determination of the proper legal
standard and warrants plenary review by this court. The
petitioner maintains that this claim involves a review
of the testimony and evidence and discusses both the
abuse of discretion and clearly erroneous standards.
We conclude that the claim raised by the respondent
consists of a determination regarding the proper legal
standard to be applied and an interpretation of the oral
decision rendered by the court. Accordingly, we agree
with the respondent that our review is plenary. See
Hartford v. CBV Parking Hartford, LLC, 330 Conn. 200,
214, 192 A.3d 406 (2018) (‘‘[w]hether the trial court
applied the proper legal standard is subject to plenary
review on appeal’’); Kunz v. Sylvain, 159 Conn. App.
730, 748, 123 A.3d 1267 (2015) (‘‘[w]e apply a plenary
standard of review to the issue of whether the correct
legal standard was used by the trial court’’); see also
Cunningham v. Cunningham, 204 Conn. App. 366, 373,
254 A.3d 330 (2021) (plenary review applies to interpre-
tation of judgment); In re Jacquelyn W., 169 Conn. App.
233, 241, 150 A.3d 692 (2016) (interpretation of court’s
memorandum of decision presents question of law sub-
ject to plenary review).
A review of the relevant legal principles will facilitate
our discussion. The present case involves the restora-
tion of the guardianship rights of a parent. Guardianship
of a minor is statutorily defined as ‘‘(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 . . . .’’ General Stat-
utes § 45a-604 (5); see also In re Adelina A., 169 Conn.
App. 111, 121 n.12, 148 A.3d 621, cert. denied, 323 Conn.
949, 169 A.3d 792 (2016); In re Michelle G., 52 Conn.
App. 187, 192, 727 A.2d 226 (1999).
Our statutes further provide that ‘‘[t]he father and
mother of every minor child are joint guardians of the
person of the minor, and the powers, rights and duties
of the father and the mother in regard to the minor
shall be equal. If either father or mother dies or is
removed as guardian, the other parent of the minor
child shall become the sole guardian of the person of
the minor.’’ General Statutes § 45a-606; see also Stevens’
Appeal, 157 Conn. 576, 577, 255 A.2d 632 (1969) (married
parents of child, by statute, are joint guardians of child).
Our statutes and rules of practice provide mecha-
nisms to remove an individual, including a parent, as
the guardian of a minor. See, e.g., General Statutes
§§ 45a-610 and 46b-129 (j) (2); Practice Book § 35a-12A.
Likewise, opportunities exist for the reinstatement of
a guardian. General Statutes §§ 45a-611 and 46b-129 (n);
Practice Book §§ 35a-20 and 35a-20A; see, e.g., In re
Adelina A., supra, 169 Conn. App. 120–21; cf. General
Statutes § 45a-611 (d) (parent removed as guardian may
not petition for reinstatement if court established per-
manent guardianship); General Statutes § 45a-616a
(Probate Court may appoint individual as permanent
guardian for minor following removal of parent as
guardian).
Our Supreme Court has stated that § 46b-129 (n) is
similar to § 45a-611; In re Zakai F., supra, 336 Conn.
285 n.11; and that these statutes provide the procedures
through which a parent may seek reinstatement of
guardianship of his or her child. See In re DeLeon J.,
290 Conn. 371, 379, 963 A.2d 53 (2009). Section 46b-129
(n) provides: ‘‘If the court has ordered legal guardian-
ship of a child or youth to be vested in a suitable and
worthy person pursuant to subsection (j) of this section,
the child’s or youth’s parent or former legal guardian
may file a motion to reinstate guardianship of the
child or youth in such parent or former legal guardian.
Upon the filing of such a motion, the court may order
the [commissioner] to investigate the home conditions
and needs of the child or youth and the home conditions
of the person seeking reinstatement of guardianship,
and to make a recommendation to the court. A party
to a motion for reinstatement of guardianship shall not
be entitled to court-appointed counsel or representation
by Division of Public Defender Services assigned coun-
sel, except as provided in section 46b-136. Upon finding
that the cause for the removal of guardianship no
longer exists, and that reinstatement is in the best
interests of the child or youth, the court may reinstate
the guardianship of the parent or the former legal
guardian. No such motion may be filed more often
than once every six months.’’ (Emphasis added.) See
also Practice Book § 35a-20.10 Guided by these princi-
ples, we address each aspect of the respondent’s claim
in turn.
A
We first consider the respondent’s assertion that, in
a reinstatement of guardianship rights case, the pre-
sumption that reinstatement is in the best interests of
the child does not apply in a dispute between two par-
ents. We agree with the respondent that this presump-
tion does not apply in such a situation.
By way of background, we note that our Supreme
Court recently conducted a detailed analysis of
‘‘whether there is a constitutional presumption that
reinstatement of guardianship rights to a parent . . .
is in the best interests of the child and, if so, whether
a heightened standard of proof is required to rebut
that presumption.’’ (Footnote omitted.) In re Zakai F.,
supra, 336 Conn. 275–76. In that case, the respondent
mother voluntarily agreed that her sister, the petitioner,
would care for the respondent’s minor child, Zakai, after
an incident in which the boyfriend of the respondent
mother physically assaulted Zakai. Id., 277. When the
respondent mother, less than one week later, requested
that the petitioner return Zakai to her care, the peti-
tioner sought immediate temporary custody and the
removal of the respondent mother’s guardianship rights
in Probate Court. Id. The Probate Court granted the
petitioner’s custody request but did not rule on her
motion for removal of the guardianship rights of the
respondent mother. Id. The matter was transferred to
the family division of the Superior Court and, eventu-
ally, to the juvenile division of the Superior Court.11 Id.,277–78. After various proceedings and the completion
of a guardianship study, the court approved an agree-
ment of the parties that guardianship was transferred
to the petitioner. Id., 278–79.
Approximately nine months later, the respondent
mother moved to reinstate her guardianship rights to
Zakai. Id., 279. The court ordered another guardianship
study pursuant to § 46b-129 (n). In its memorandum
of decision, the court concluded that the respondent
mother had ameliorated the reasons and events that
had prompted the agreement to transfer guardianship
of Zakai to the petitioner. Id., 280. The court determined,
however, by a fair preponderance of the evidence, that
it was not in Zakai’s best interests to return to the care
of the respondent mother. Id., 282.
On appeal, our Supreme Court noted that, once a
parent established that the cause for removal no longer
existed, a presumption that reinstatement of that par-
ent’s guardianship rights was in the child’s best interests
was constitutionally required. Id., 288. To support this
conclusion, the court first reviewed the language of the
relevant statute and rule of practice. Id., 284–85. ‘‘We
begin with the text of § 45a-611 (b), which provides 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 guard-
ian and reinstate the parent as guardian of the person
of the minor, if it determines that it is in the best inter-
ests of the minor to do so. . . . Nothing in the language
of the statute itself requires a presumption that rein-
statement 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 guardian-
ship. Practice Book [2020] § 35a-20 (d) provides: The
hearing on a motion for reinstatement of guardianship
is dispositional in nature. The party seeking reinstate-
ment of guardianship has the burden of proof to estab-
lish 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
[2020] § 35a-20, like § 45a-611, does not address whether
there is a presumption in place.’’12 (Internal quotation
marks omitted.) Id., 284–85; see generally In re Avirex
R., 151 Conn. App. 820, 828, 96 A.3d 662 (2014) (rules
of practice implement relevant statutory scheme).
The court then looked to analogous cases, namely,
In re Juvenile Appeal (Anonymous), 177 Conn. 648,
420 A.2d 875 (1979), which relied on Claffey v. Claffey,
135 Conn. 374, 64 A.2d 540 (1949). In re Zakai F., supra,
336 Conn. 285–88. Specifically, the court noted that in
Claffey v. Claffey, supra, 377, it had explained: ‘‘[A]t
least, where the controversy is not between the father
and the mother . . . the mother has a prior right to
custody unless the circumstances are such that to give
it to her would not be for the best interests of the child.’’
(Internal quotation marks omitted.) In re Zakai F.,
supra, 287. Similarly, our Supreme Court relied on the
following statement from In re Juvenile Appeal (Anon-
ymous), supra, 662: ‘‘[I]n any controversy between a
parent and [anyone who was 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].’’
(Internal quotation marks omitted.) In re Zakai F.,
supra, 287–88.
Ultimately, our Supreme Court concluded that, with
respect to a motion to reinstate guardianship rights, a
parent who successfully demonstrated that the factors
that resulted in his or her removal as guardian were
resolved satisfactorily is entitled to a presumption that
reinstatement is in the best interests of the child. Id.,
288. The cases primarily relied on by our Supreme Court
in reaching this conclusion contained a caveat that this
presumption applies only when the matter to be
resolved is not between the mother and the father. See
In re Juvenile Appeal (Anonymous), supra, 177 Conn.
662; Claffey v. Claffey, supra, 135 Conn. 377.13 It then
determined that the burden shifted to the nonparent to
rebut the presumption in reinstatement of guardianship
cases. In re Zakai F., supra, 336 Conn. 289. Finally, our
Supreme Court held that a nonparent must rebut the
presumption by clear and convincing evidence. Id., 306.
On the basis of the reasoning and rationale set forth
by our Supreme Court in In re Zakai F., supra, 336
Conn. 272, a parent who has filed a motion to reinstate
his or her guardianship rights and who has demon-
strated that the reasons that led to the removal of that
parent’s guardianship rights have been resolved satis-
factorily is entitled to a presumption that reinstatement
is in the best interests of the child when the current
guardian is a nonparent. We agree with the respondent,
however, that this presumption does not apply in a
dispute between two parents.
B
We now turn to the respondent’s claim that the court
improperly applied the presumption that reinstatement
of the petitioner’s guardianship rights was in the best
interests of Paulo. Specifically, the respondent con-
tends that the court applied an incorrect legal standard
and that the appropriate remedy is a new trial. After a
careful review of the court’s memorandum of decision,
we conclude that it did not apply this presumption in
favor of the petitioner. Accordingly, the respondent’s
claim must fail.
At the outset of its oral decision, the court stated:
‘‘The instant petition for restoration of parental guard-
ianship was filed by [the petitioner] on November 20,
2020. In order to prevail on this petition, a parent must
demonstrate 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 interest of the child. In addition to the restoration
of guardianship, [the petitioner] is seeking physical cus-
tody of Paulo as well as the restoration of parental
guardianship.’’ (Emphasis added.) The court then deter-
mined that the petitioner had met her burden of estab-
lishing that the cause for the removal of her guardian-
ship rights had been satisfactorily resolved. Ultimately,
the court reinstated the petitioner’s guardianship rights
and awarded her primary custody of Paulo.
With respect to the best interests analysis,14 the court
considered the statutory factors set forth in § 46b-56
(c), and discussed the most relevant factors, namely,
the temperament and development needs of the child,
the capacity and disposition of the parents to under-
stand and meet the needs of the child, any relevant and
material information obtained from the child, including
his informed preferences, the past and current interac-
tion and relationship of the child with each parent, the
willingness and ability of each parent to facilitate and
encourage such continuing parent-child relationship
between the child and the other parent, any manipula-
tion by or coercive behavior of the parents in an effort
to involve the child in the parents’ dispute, the length of
time that the child has lived in a stable and satisfactory
environment, and the stability of the child’s existing or
proposed residences. See General Statutes § 46b-56 (c)
(2), (3), (4), (6), (7), (8), (11) and (12).
After discussing and balancing these factors, the
court concluded that it was in Paulo’s best interests to
restore the petitioner’s guardianship rights and award
her physical custody. In doing so, the court expressly
relied on the length of time Paulo had been in the
petitioner’s care prior to the removal of her guardian-
ship rights, her ‘‘demonstrated devotion . . . in over-
coming her demons,’’ the recommendations of the
guardian ad litem and various employees of the depart-
ment, Paulo’s own expressed wishes, and the petition-
er’s parenting style as Paulo entered his teenage years.
At no point in its analysis did the court, explicitly or
implicitly, address, mention, or apply a presumption in
favor of the petitioner. Rather, the court considered
and balanced the most relevant factors set forth in
§ 46b-56 (c) in accordance with our law.
The respondent points to the court’s statement that
‘‘[t]he parent is entitled to a presumption that reinstate-
ment of guardianship rights is in the best interest of
the child.’’ We acknowledge that this is not a precisely
accurate statement of our law. In cases in which a
parent seeks to restore his or her guardianship rights
involving a nonparent, be it another family member,
third party, or government agency, the statement made
by the court would be accurate. See In re Zakai F.,
supra, 336 Conn. 288. In a restoration of guardianship
rights case involving two parents, however, no such
presumption exists. See part I A of this opinion.
The respondent, as the appellant, bears the burden
of establishing that the court applied an incorrect legal
standard; we will not engage in speculation or presume
such error. See, e.g., DiBerardino v. DiBerardino, 213
Conn. 373, 385, 568 A.2d 431 (1990); Corneroli v. Kutz,
183 Conn. App. 401, 416 n.4, 193 A.3d 64 (2018). In fact,
in a similar context, our Supreme Court recognized
that a court’s misstatement regarding the correct legal
standard does not require a reversal and new proceed-
ing in every instance. In Cookson v. Cookson, 201 Conn.
229, 231–33, 514 A.2d 323 (1986), the parties were
involved in a custody and visitation dispute. The plain-
tiff mother appealed from the decision of the trial court
awarding custody to the defendant father and granting
her specific visitation rights with certain conditions
imposed. Id., 233. In its memorandum of decision, the
court had referred to a ‘‘ ‘least detrimental alternative’
standard . . . .’’ Id., 241. In her appeal, the plaintiff
claimed, inter alia, that the court had failed to apply
the statutorily mandated best interests standard. Id.
In rejecting this claim, our Supreme Court reasoned:
‘‘The trial court was, however, obviously searching to
accommodate the best interests of the children, and
on the record before us we have no reason to believe
that it did not ultimately apply the best interests of
the child standard to its decision. Least detrimental
alternative was manifestly alternate phraseology uti-
lized by the trial court to describe the compelling con-
cerns involved in the difficult custody decision it faced.
Significantly, later in its memorandum of decision, the
trial court recognized that the defendant was asking
the court to consider the present best interests of the
children and, in promulgating its orders, the trial court
summarized its conclusions in the following manner.
Return to the home of the parent who obstructed the
children’s relationship with their father, who permitted
someone other than herself to impose humiliating and
frightening punishments for relatively minor misbehav-
iors, and who lied and defied court orders, is inconsis-
tent with the best interests of these children.
‘‘The fact that the least detrimental alternative was
mentioned in the trial court’s decision as a desirable
goal and may have culminated in the same result as
the statutory criteria does not require a conclusion
that the court based its decision on that standard. Any
ambiguity notwithstanding, and no clear evidence to
the contrary having been introduced, it was implicit in
the trial court’s award that it was based on the statutory
standard of the best interests of the child.’’ (Emphasis
added; internal quotation marks omitted.) Id., 241–42.
In the present case, although the court mentioned
the best interests presumption that applies in many,
but not all, restoration of guardianship disputes, we are
unable to discern any example of the court applying that
presumption. Rather, the court carefully considered and
applied the relevant statutory criteria in determining
whether the restoration of the petitioner’s guardianship
rights was in the best interests of Paulo. See, e.g.,
D’Amato v. Hart-D’Amato, 169 Conn. App. 669, 678,
152 A.3d 546 (2016) (statutorily incumbent on court
issuing orders regarding custody and visitation to be
guided by best interests of child).
As this court has observed: ‘‘Although the court’s
oral decision does not clearly set forth the defendant’s
burden of proof, we nevertheless interpret the decision
by considering it in its entirety, rather than by consid-
ering certain statements in artificial isolation.’’
(Emphasis added.) State v. Anderson, 163 Conn. App.
783, 796, 134 A.3d 741, cert. denied, 321 Conn. 909, 138
A.3d 931 (2016); see also In re Jason R., 306 Conn. 438,
453, 51 A.3d 334 (2012) (opinion must be read in its
entirety, without particular portions read in isolation,
to determine parameters of its holding, and ambiguous
trial record was read to support, rather than contradict,
trial court’s judgment); Bisson v. Wal-Mart Stores, Inc.,
184 Conn. App. 619, 630 n.11, 195 A.3d 707 (2018) (‘‘this
court will presume [that] trial court acted properly in
performance of its duties’’). For these reasons, we reject
the respondent’s assertion that the court applied a pre-
sumption in favor of the petitioner when it determined
that the restoration of her guardianship rights was in
the best interests of Paulo.
II
The respondent next claims that the court incorrectly
determined that the factors that led to the removal of
the petitioner as guardian of Paulo had been resolved.
Specifically, he argues that the court failed to identify
all of the factors that led to the petitioner’s removal and
improperly found that these factors had been resolved
satisfactorily. We disagree.
The following additional facts are necessary for our
discussion of this claim. The petitioner has a long his-
tory of alcohol abuse. On February 17, 2019, the depart-
ment received a referral alleging physical and educa-
tional neglect of Paulo. Specifically, this referral alleged
that the petitioner was homeless and abusing alcohol
and that Paulo had not been enrolled in school for three
weeks. The department commenced an investigation,
and the petitioner admitted to having been evicted from
her apartment on February 1, 2019. She and Paulo had
moved to another town, but, due to her homelessness,
the petitioner had been unable to register Paulo in a
new school. Paulo also stated that the petitioner drove
an automobile while intoxicated and that he had to ask
her to ‘‘stop driving fast.’’ The petitioner and Paulo had
been staying with a family member, but, as a result of
the petitioner’s alcohol abuse, they were asked to leave.
At a subsequent meeting, a member of the department
discussed the issues of homelessness and alcohol abuse
with the petitioner. The petitioner admitted to consum-
ing alcohol in the presence of Paulo for ‘‘coping pur-
poses . . . .’’ Furthermore, the petitioner acknowl-
edged the concern of the department with respect to
the lack of stable housing for herself and Paulo. These
concerns—the petitioner’s homelessness and alcohol
use—were identified specifically as the reasons for the
department’s request for an out of home placement.15
The court determined that Paulo was neglected and
uncared for and vested his temporary care and custody
in Tachelle, the respondent’s adult daughter.
Following the petitioner’s motion for reinstatement
of her guardianship rights, the department conducted
a study dated February 22, 2021. This study documented
the petitioner’s extensive history with the department,
beginning in 2009. At the time of this study, the peti-
tioner lived in a condominium with her boyfriend. Paulo
had his own room at this residence, which was
described as ‘‘nicely furnished, clean and there is ample
food . . . [and no] safety concerns were noted . . . .’’
The study also noted that the petitioner had ‘‘success-
fully completed substance abuse treatment.’’ Specifi-
cally, she completed an intensive outpatient program
and then resided in a sober house. The petitioner
‘‘obtained a sponsor right away, jumped into the [AA]
program by attending daily meetings and participated
in a 12-step program. She also worked very close with
her counselor twice a week her entire time. Her drug/
alcohol testing are all negative.’’ The petitioner’s psy-
chotherapist reported that she participated in her treat-
ment, demonstrated her willingness and openness to
work through her issues, and recognized the seri-
ousness of her addiction and the resulting conse-
quences. The psychotherapist specifically noted the
petitioner’s ‘‘dedication to regaining her role in [Paulo’s]
life and reuniting with him.’’ Finally, the petitioner’s
sponsor indicated that the petitioner had been compli-
ant with her sobriety services and that she continued
to grow and live a good life that she shared with Paulo.
In the ‘‘Assessment and Recommendation’’ section
of the study, it was noted that the petitioner ‘‘needed
to address her alcohol addiction and needed to be in
a stable situation before motioning the court for [r]ein-
statement.’’ With respect to the former, the study
observed that the petitioner’s clinicians had reported
her to be rehabilitated and doing well in her recovery.
As to the latter, the study stated that the petitioner
had obtained steady employment and stable housing.
It concluded: ‘‘[The department], based on the informa-
tion available at this time recommends [that] the peti-
tion for reinstatement be granted.’’
As we have noted, a parent seeking reinstatement of
guardianship rights must demonstrate that the factors
that resulted in the removal of those rights have been
resolved satisfactorily and that it is in the best interests
of the child to reinstate those rights. In re Brian W.,
124 Conn. App. 787, 792, 6 A.3d 136 (2010). ‘‘The award
of the custody of a minor child is a matter within the
sound discretion of the trial court. . . . We review the
award to determine whether that discretion has been
abused and whether the trial court, in the exercise of
its discretion, has overlooked or misapplied some estab-
lished principle of pertinent law. . . . When the factual
basis of the trial court’s decision is challenged on
appeal, the role of this court is to determine whether
the facts set out in . . . the decision . . . are clearly
erroneous. . . . The trial court’s findings are binding
upon this court unless they are clearly erroneous in
light of the evidence and the pleadings in the record
as a whole. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’’ (Citation omitted; internal quotation
marks omitted.) Id., 792–93; see generally In re Patricia
C., 93 Conn. App. 25, 32–33, 887 A.2d 929, cert. denied,
277 Conn. 931, 896 A.2d 101 (2006).16
A
The respondent first argues the court failed to identify
all of the factors that led to the petitioner’s removal.
Specifically, he contends that the court incorrectly
found that only the petitioner’s alcohol abuse and home-
lessness constituted the bases for the loss of her guard-
ianship rights and ignored other matters set forth in
the order of temporary custody and neglect petitions,
such as allegations of physical neglect, a history of
poor decisions related to proper parenting, inadequate
supervision of Paulo, family violence matters, and her
criminal history. We are not persuaded.
At the outset of its oral decision, the court stated
that the present matter originated from a neglect peti-
tion and that an order of temporary custody was issued
on February 26, 2019. It then identified the two reasons
for Paulo’s removal from the petitioner’s care: ‘‘[T]he
immediate problem of homelessness, secondary to a
more serious problem of alcohol abuse on the part of
[the petitioner]. Paulo was adjudicated neglected on
the basis of homelessness, and custody and guardian-
ship was transferred to [the respondent] on June 10
of 2019.’’
We acknowledge that the affidavits attached to the
petitions filed by the commissioner contain a detailed
recitation of the petitioner’s past parenting difficulties
and her involvement with the criminal justice system.
A review of the entire record, however, supports the
court’s determination that the two reasons for the loss
of the petitioner’s guardianship rights were her home-
lessness and alcohol abuse. Those exigent matters
caused the department, acting through the commis-
sioner, to take action and initiate the proceedings that
led to the removal of the petitioner’s guardianship rights
and transfer of custody to Tachelle and, eventually, to
the respondent. Although the record referenced other
matters, we conclude that the court properly identified
the two bases for the removal of the petitioner’s guard-
ianship rights of Paulo.
B
The respondent next argues that the court incorrectly
found that the factors that led to the removal of the
petitioner’s guardianship rights had been resolved satis-
factorily. Specifically, he contends that her housing situ-
ation remained uncertain because she had moved in
with an individual with whom she had recently entered
into a romantic relationship and that there was ‘‘scant’’
evidence with respect to her sobriety. We conclude that
the court’s findings regarding the satisfactory resolution
of the reasons for the loss of the petitioner’s guardian-
ship rights are not clearly erroneous, because they are
supported by the evidence, and that the court properly
concluded that the factors that led to the loss of the
petitioner’s guardianship rights had been resolved.
Yolanda Kearney, a social worker employed by the
department, testified that the department supported the
reinstatement of the petitioner’s guardianship rights.
The petitioner testified that she engaged in recovery
efforts with the ultimate goal of regaining her guardian-
ship rights and custody of Paulo. In order to achieve
this, the petitioner went to an intensive outpatient treat-
ment center with a structured environment to learn the
tools necessary for her to establish and maintain her
sobriety. A treating clinician at the intensive outpatient
treatment center testified that the petitioner was an
‘‘active participant’’ in the program following her self-
referral. The clinician further stated that the petitioner
successfully had completed fourteen of the twenty-four
sessions of the program and then transferred to the
sober house due, in part, to the emergence of the
COVID-19 pandemic. While at this treatment center, the
petitioner’s weekly drug tests were negative for alcohol,
and the clinician indicated that the petitioner had ‘‘dis-
played insight regarding the consequences of her past
use [of alcohol] and was highly motivated to maintain
sobriety.’’
The petitioner then went to a sober house, which
afforded her the opportunity to attend group and indi-
vidual counseling and daily AA meetings at various loca-
tions. Through these processes, the petitioner learned
to identify the specific triggers that led to her abuse of
alcohol. The manager of the sober house testified that
all of the petitioner’s random drug tests were negative.
The manager further described the petitioner as a
‘‘model resident to have at the house. . . . She did
everything that we required of her and beyond. She
obtained—she obtained a job right away and started
becoming a contributing member of society and was
working towards her goals immediately of getting her
son back in her life.’’ The manager also noted that the
petitioner helped other residents by providing them
with transportation and speaking with new members.
The petitioner actively engaged with her counselor.
After leaving the sober house, the petitioner returned
several times to participate in weekly dinners as a for-
mer resident.
The petitioner stated that she had been sober since
January, 2020. She also continued to attend weekly AA
meetings and described her sobriety as ‘‘pretty solid
. . . .’’ The petitioner further stated that she was resid-
ing with her fiancé in a two bedroom condominium.
She indicated that she had obtained employment as an
office administrator, earning $600 per week.
In his principal and reply briefs, the respondent con-
tends that the petitioner’s housing situation has not
been resolved because ‘‘she moved into the apartment
of a man who she met a few months earlier’’ and that
she would be unable to afford that apartment on her
own. The respondent further argues that ‘‘the evidence
of [the petitioner’s] sobriety is scant’’ and points to her
history of drug abuse and her criminal record. These
arguments, distilled to their essence, constitute a
request for this court to reweigh the evidence and reach
a contrary conclusion to that of the trial court. Our
role, however, is more limited. ‘‘In the absence of clearly
erroneous factual findings that are material to the deci-
sion, the question is not simply whether there is some
evidence that would support the granting of the petition.
Rather, we must review whether, in light of the facts
found by the court and the evidence it credited, the
only rational outcome would have been for the court
to grant the petition. We cannot reweigh the evidence
or reevaluate the credibility of witnesses to determine
whether, in our own view, the evidence could have
warranted [the denial of the motion to reinstate the
petitioner’s guardianship rights]. Every reasonable pre-
sumption must be made in favor of the trial court’s
ruling . . . . As indicated, we are bound by the trial
court’s subordinate factual findings, which are
reviewable only for clear error.’’ (Citation omitted;
emphasis added; footnote omitted.) In re Mariana A.,
181 Conn. App. 415, 428–29, 186 A.3d 83 (2018); see
also In re Quanitra M., 60 Conn. App. 96, 106, 758 A.2d
863 (function of appellate court is to review, not retry,
proceedings of trial court), cert. denied, 255 Conn. 903,
762 A.2d 909 (2000). Stated differently, ‘‘we will not
scrutinize the record to look for reasons supporting a
different conclusion than that reached by the trial
court.’’ In re Shane M., 318 Conn. 569, 593, 122 A.3d
1247 (2015). In light of the evidence before the court,
we cannot conclude that its finding that the petitioner
had resolved the issues that led to the removal of her
guardianship rights was clearly erroneous.
III
The respondent next claims that the court errone-
ously found that reinstatement of the petitioner’s guard-
ianship rights was in the best interests of Paulo. Specifi-
cally, he argues that the best interests of Paulo were
not supported due to the loss of educational opportuni-
ties and lack of evidence that Paulo had thrived in the
first ten years of his life when he had resided with the
petitioner. We conclude that the evidence was sufficient
to support the court’s findings that the restoration of
the petitioner’s guardianship rights and transfer of cus-
tody to the petitioner were in Paulo’s best interests.
This court recently has stated: ‘‘[Section] 46b-56 pro-
vides the legal standard for determining child custody
issues. The statute requires that the court’s decision
serve the child’s best interests. . . . The controlling
principle in a determination respecting custody is that
the court shall be guided by the best interests of the
child. . . . Our Supreme Court has consistently held
in matters involving child custody . . . that while the
rights, wishes and desires of the parents must be consid-
ered it is nevertheless the ultimate welfare of the child
[that] must control the decision of the court. . . . In
making this determination, the trial court is vested with
broad discretion which can . . . be interfered with
[only] upon a clear showing that that discretion was
abused. . . . Thus, a trial court’s decision regarding
child custody must be allowed to stand if it is reasonably
supported by the relevant subordinate facts found and
does not violate law, logic or reason. . . . Under § 46b-
56 (c), the court, in determining custody, must consider
the best interests of the child and, in doing so, may
consider, among other factors, one or more of the [sev-
enteen] factors enumerated in the provision.
‘‘[T]he authority to exercise the judicial discretion
[authorized by § 46b-56] . . . is not conferred [on] this
court, but [on] the trial court, and . . . we are not
privileged to usurp that authority or to substitute our-
selves for the trial court. . . . A mere difference of
opinion or judgment cannot justify our intervention.
Nothing short of a conviction that the action of the trial
court is one [that] discloses a clear abuse of discretion
can warrant our interference.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Cole-
man v. Bembridge, 207 Conn. App. 28, 47–49, 263 A.3d
403 (2021); see also In re Averiella P., 146 Conn. App.
800, 803, 81 A.3d 272 (2013); In re Karl J., 110 Conn.
App. 22, 26, 954 A.2d 231, cert. denied, 289 Conn. 954,
961 A.2d 420 (2008).
Francis Santoro, a Bridgeport police officer, testified
that he spoke with a visibly upset Paulo on May 27,
2021, following an incident involving the respondent.
Kearney testified that Paulo had informed her that he
wished to live with the petitioner. The department’s
‘‘Court Study for Reinstatement of Guardian’’ noted that
Paulo had lived with the petitioner for most of his life
and that the petitioner presented as ‘‘stable and appears
to have Paulo’s best interest at heart.’’ The study further
concluded that Paulo appeared to have a ‘‘very good
relationship’’ with both parents, but he had expressed
a desire to live with the petitioner.17 The guardian ad
litem testified18 that Paulo appeared to be much more
relaxed at the petitioner’s condominium where he is
engaged in a ‘‘very happy routine . . . .’’ Paulo
expressed no reservations about changing schools. Ulti-
mately, the court concluded that restoration of the peti-
tioner’s guardianship rights and awarding her primary
custody were in Paulo’s best interests.19
The petitioner testified that Paulo did not have his
own room, kept his clothes in black plastic bags, and
slept on a couch while residing with the respondent.
She further stated that during her visits with Paulo,
they would go to the beach and use ‘‘boogie board[s],’’
kayaks, and ‘‘long boards.’’ The two would ride bicycles,
play basketball, exercise at a gym, cook, and bake
together. The petitioner also helped Paulo with his math
homework.
The respondent argues that there was no evidence
to support the court’s finding that Paulo had thrived
during the first ten years of his life when he lived with
the petitioner. We do not agree. The petitioner testified
that Paulo was an excellent student during their six
years in Berlin. Paulo also participated in numerous
sports, including football, basketball, and wrestling. In
a 2019 study, the department concluded Paulo was a
‘‘fairly healthy child’’ who had excelled at school. The
study also noted that Paulo interacted well with family
and his peers in school. ‘‘Paulo appears to be a typical
preteen boy that is happy and loving. He appears to be
knowledgeable about his surroundings and has experi-
ences that have matured him a little earlier than most
children his age.’’ The evidence demonstrated that,
despite the petitioner’s difficulties, Paulo had done well
in her care prior to the loss of her guardianship rights.
The respondent also contends that the court’s
‘‘implicit finding that Paulo’s transfer from a select,
admission-only gifted and talented program in Bridge-
port to the Milford school system is in Paulo’s best
interest is clearly erroneous, in that there is no record
evidence to support it.’’ We disagree with this assertion.
First, the guardian ad litem testified that other public
schools had programs that would challenge Paulo and
provide him with extra assistance in his educational
pursuits. The guardian ad litem also described Paulo
as ‘‘very smart’’ and ‘‘a voracious reader.’’ The respon-
dent’s argument that there was no evidence in the
record regarding a school transfer, therefore, is unavail-
ing. Second, we iterate that the best interests determina-
tion is not based on a single factor but, rather, consider-
ation of those set forth in § 46b-56 (c). See, e.g., Weaver
v. Sena, 199 Conn. App. 852, 864, 238 A.3d 103 (2020)
(court does not abuse its discretion when it focuses on
certain § 46b-56 (c) factors in best interests analysis);
Watrous v. Watrous, 108 Conn. App. 813, 825, 949 A.2d
557 (2008) (language of § 46b-56 (c) does not compel
consideration of any particular factor or factors when
determining best interests). For these reasons, we reject
the respondent’s contention that the court’s findings
were clearly erroneous and that it abused its discretion
with respect to its conclusion regarding Paulo’s best
interests.
IV
The respondent’s final claim is that the court improp-
erly dismissed his motion to open the judgment. Specifi-
cally, he contends that the court improperly failed to
consider its merits. Under the facts and circumstances
of this case, we conclude that the court properly
declined to exercise its jurisdiction to consider the argu-
ments set forth in the respondent’s motion to open.
We begin with our standard of review. ‘‘We review a
trial court’s ruling on motions to open under an abuse
of discretion standard. . . . Under this standard, we
give every reasonable presumption in favor of a deci-
sion’s correctness and will disturb the decision only
where the trial court acted unreasonably or in a clear
abuse of discretion.’’ (Internal quotation marks omit-
ted.) People’s United Bank, National Assn. v. Purcell,
187 Conn. App. 523, 525–26, 202 A.3d 1112 (2019). Addi-
tionally, we note that ‘‘[t]he manner in which [this]
discretion is exercised will not be disturbed so long as
the court could reasonably conclude as it did. . . .
When exercising its discretion on a motion to open, the
court may consider the totality of the circumstances
under which the motion to open is filed . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Zilkha
v. Zilkha, 167 Conn. App. 480, 494, 144 A.3d 447 (2016).
The following additional facts are necessary for our
discussion of this claim. At the conclusion of the Sep-
tember 8, 2021 hearing, the court reinstated the petition-
er’s guardianship rights, awarded her primary physical
custody, and issued orders regarding visitation. The
court then stated: ‘‘Let me add . . . as long as we’re
still on the record [that this] court will not retain juris-
diction over any visitation issues. Any disputes or neces-
sary modifications will be addressed to the family
court.’’
On September 27, 2021, the respondent filed a motion
to open the judgment pursuant to Practice Book § 17-
4.20 In this motion, he alleged that the petitioner had
disregarded the court’s visitation orders and that he had
been unable to contact and communicate with Paulo.
In support of these allegations, the respondent stated
that the petitioner had sent him a text claiming that she
lacked the resources to transport Paulo to a scheduled
visitation with the respondent on September 15, 2021.
The respondent further insisted that the petitioner had
not permitted him to have any contact with Paulo. In
conclusion, the respondent argued that the petitioner’s
conduct following her restoration of her guardianship
rights and physical custody of Paulo demonstrated her
lack of regard for the court’s orders and that she will
‘‘apply her best efforts to destroy the relationship
between [the respondent] and his son.’’
On October 4, 2021, the petitioner filed an objection
to the respondent’s motion to open the judgment. She
argued, inter alia, that the respondent was free to file
postjudgment motions in the family division of the Supe-
rior Court and that the respondent was attempting to
relitigate the matter.
The court conducted a hearing on October 28, 2021.
At the outset, the court discussed a motion for contempt
that the respondent had filed. The court dismissed that
motion on the basis of its prior directive that it had
not retained jurisdiction. The court then addressed the
respondent’s motion to open, which it described as a
‘‘motion to modify the disposition.’’ It then stated: ‘‘If
you intend to file a petition for restoration of parental
guardianship, which we call an RPG, you need to do
that in proper form, you need to file the petition, it
needs to be served, and then the court will order [the
department] to do a study.’’21 The court then offered to
communicate directly with the family court to resolve
any questions regarding the matter. After a further collo-
quy with the respondent’s counsel and the guardian ad
litem, the court indicated that if the respondent wanted
to modify the September 8, 2021 order so that he had
physical custody, he would need to file a new petition.
The court further explained that ‘‘[a]nything that has
to do with custody—anything that has to do with cus-
tody and guardianship, we have to keep. We keep that
because we entered the orders here. But once we enter
a visitation order and we do not retain jurisdiction, the
visitation part will go to the family court . . . . So . . .
the motion to modify is dismissed. You need to file a
new petition.’’
In his motion to open, the respondent alleged that
the petitioner had disregarded the court’s visitation
orders. In response, the court indicated that it would
not exercise its jurisdiction to consider claims regarding
visitation, as it previously had indicated that such mat-
ters would need to be presented to the family court.
The respondent also requested that the court award
him sole custody of Paulo. The court responded that if
the respondent wanted to pursue that goal, he would
be required to file a motion to modify custody, the
motion would need to be served, and a study would
need to be completed before such an order could issue.
In short, the court declined to consider altering or modi-
fying its custody order on the basis of conduct alleged
to have occurred after the court’s September 8, 2021
order reinstating the petitioner’s guardianship rights
and awarding her primary physical custody of Paulo.
Instead, the court provided the respondent with options
to pursue his claims, namely, by raising the visitation
issue with the family court and filing a new motion to
modify custody. On the basis of the totality of these
circumstances, we conclude that the court did not
abuse its discretion in dismissing the respondent’s
motion to open.
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 who have a proper interest therein and upon
order of the Appellate Court.
** July 18, 2022, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 46b-129 (j) (2) provides in relevant part: ‘‘Upon finding
and adjudging that any child or youth is uncared for . . . the court may
. . . (B) vest such child’s or youth’s legal guardianship . . . with any other
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 . . . .’’
2
See General Statutes § 46b-120 (6) (A) (child who is homeless may be
found uncared for).
3
In a court study prepared by the department, it was noted that, ‘‘[i]n
June, 2019, [Paulo] came to live with [the respondent] as [Tachelle] could
no longer care for him.’’
4
See General Statutes § 46b-129 (n) (parent may file motion to reinstate
guardianship).
5
‘‘General Statutes § 46b-1 prescribes family relations matters within the
jurisdiction of the Superior Court. . . . Juvenile matters, as provided in
General Statutes § 46b-121, include all proceedings concerning uncared-for,
neglected or abused children within this state . . . .’’ (Citation omitted;
emphasis omitted; footnote omitted; internal quotation marks omitted.) In
re Teagan K.-O., 335 Conn. 745, 760, 242 A.3d 59 (2020).
6
See General Statutes § 46b-129 (n) (court may order commissioner to
investigate home conditions and needs of child or youth, and home condi-
tions of person seeking reinstatement of guardianship, and to make recom-
mendations to court).
7
General Statutes § 46b-56 (c) provides: ‘‘In making or modifying any
order as provided in subsections (a) and (b) of this section, the court shall
consider the best interests of the child, and in doing so, may consider, but
shall not be limited to, one or more of the following factors: (1) The physical
and emotional safety of the child; (2) the temperament and developmental
needs of the child; (3) the capacity and the disposition of the parents to
understand and meet the needs of the child; (4) any relevant and material
information obtained from the child, including the informed preferences of
the child; (5) the wishes of the child’s parents as to custody; (6) the past
and current interaction and relationship of the child with each parent, the
child’s siblings and any other person who may significantly affect the best
interests of the child; (7) the willingness and ability of each parent to
facilitate and encourage such continuing parent-child relationship between
the child and the other parent as is appropriate, including compliance with
any court orders; (8) any manipulation by or coercive behavior of the parents
in an effort to involve the child in the parents’ dispute; (9) the ability of
each parent to be actively involved in the life of the child; (10) the child’s
adjustment to his or her home, school and community environments; (11)
the length of time that the child has lived in a stable and satisfactory
environment and the desirability of maintaining continuity in such environ-
ment, provided the court may consider favorably a parent who voluntarily
leaves the child’s family home pendente lite in order to alleviate stress in the
household; (12) the stability of the child’s existing or proposed residences,
or both; (13) the mental and physical health of all individuals involved,
except that a disability of a proposed custodial parent or other party, in
and of itself, shall not be determinative of custody unless the proposed
custodial arrangement is not in the best interests of the child; (14) the child’s
cultural background; (15) the effect on the child of the actions of an abuser,
if any domestic violence, as defined in section 46b-1, has occurred between
the parents or between a parent and another individual or the child; (16)
whether the child or a sibling of the child has been abused or neglected,
as defined respectively in section 46b-120; and (17) whether the party satis-
factorily completed participation in a parenting education program estab-
lished pursuant to section 46b-69b. The court is not required to assign any
weight to any of the factors that it considers, but shall articulate the basis
8
The court ordered that, effective September 8, 2021, the respondent
would have visitation with Paulo every Wednesday at 5 p.m. through Thurs-
day morning and that the petitioner was responsible for providing transporta-
tion. Effective September 17, 2021, the respondent would have visitation
with Paulo on alternating weekends, commencing on Friday at 5 p.m. through
Sunday at 6 p.m. and the respondent was responsible for transportation.
9
The guardian ad litem and the attorney for the minor child both have
adopted the appellate brief and position of the petitioner.
10
Practice Book § 35a-20 provides: ‘‘(a) Whenever a parent whose guard-
ianship rights to a child or youth were removed and transferred to another
person or an agency other than the [department] by the Superior Court for
juvenile matters seeks reinstatement as that child’s or youth’s guardian, the
parent may file a motion for reinstatement of guardianship with the court
that ordered the transfer of guardianship.
‘‘(b) The clerk shall assign such motion a hearing date and issue a summons
to the current guardian and the nonmoving parent or parents. The moving
party shall cause a copy of such motion and summons to be served on
the child’s or youth’s current legal guardian(s) and the nonmoving parent
or parents.
‘‘(c) Before acting on such motion, the judicial authority shall determine
if the court still has custody jurisdiction and shall request, if necessary, that
the [commissioner] conduct an investigation and submit a home study that
sets forth written findings and recommendations before rendering a decision.
‘‘(d) The hearing on a motion for reinstatement of guardianship is disposi-
tional in nature. If the parent seeking reinstatement of guardianship demon-
strates that the factors that resulted in the parent’s removal as guardian are
resolved satisfactorily, the parent is entitled to a presumption that reinstate-
ment is in the best interest of the child or youth. The party opposing reinstate-
ment of guardianship has the burden of proof to rebut this presumption by
clear and convincing evidence.’’
11
‘‘To promote an efficient use of judicial resources, the Superior Court
has been divided into four divisions: Family, civil, criminal and housing.
Each division is further divided into parts.’’ In re Shonna K., 77 Conn. App.
246, 252, 822 A.2d 1009 (2003); see also State v. Ledbetter, 263 Conn. 1, 4
n.9, 818 A.2d 1 (2003) (Connecticut has unified court system and, therefore,
all criminal and civil matters, including juvenile matters, fall within subject
matter jurisdiction of Superior Court).
12
We note that Practice Book § 35a-20 (d) was amended, effective January
1, 2022, to specify that a parent is entitled to a presumption, consistent with
the decision in In re Zakia F., supra, 336 Conn. 272. See Practice Book
§ 35a-20, commentary; see also footnote 10 of this opinion.
13
The respondent’s brief further directs us to the following language from
Fish v. Fish, 285 Conn. 24, 939 A.2d 1040 (2008), where our Supreme Court
stated: ‘‘We first note that third party custody disputes differ from those in
which both parents seek custody because, in the latter case, each party
possesses a constitutionally protected parental right. . . . In cases in which
both parents seek custody, [n]either parent has a superior claim to the
exercise of [the] right to provide care, custody, and control of the children.
. . . Effectively, then, each fit parent’s constitutional right neutralizes the
other parent’s constitutional right, leaving, generally, the best interests of
the child as the sole standard to apply to these types of custody decisions.
Thus, in evaluating each parent’s request for custody, the parents commence
as presumptive equals and a trial court undertakes a balancing of each
parent’s relative merits to serve as the primary custodial parent; the child’s
best interests [tip] the scale in favor of an award of custody to one parent
or the other.
‘‘Where the dispute is between a fit parent and a private third party,
however, both parties do not begin on equal footing in respect to rights to
care, custody, and control of the children. The parent is asserting a funda-
mental constitutional right. The third party is not. A private third party has
no fundamental constitutional right to raise the children of others. Generally,
absent a constitutional statute, the non-governmental third party has no
rights, constitutional or otherwise, to raise someone else’s child.’’ (Citation
omitted; emphasis omitted; footnote omitted; internal quotation marks omit-
ted.) Id., 45–46.
14
The court appears to have merged its best interests analysis with respect
to the restoration of the petitioner’s guardianship rights and determination
of physical custody.
15
The department specifically listed these concerns in an addendum to
the order of temporary custody and neglect filed with the court.
16
The respondent summarily asserts that this claim requires us to construe
§ 45a-611 and, therefore, that our review is plenary. First, despite his refer-
ence to § 45a-611, the controlling statute in this case is § 46b-129 (n). Second,
we disagree with the respondent’s assertion regarding plenary review. We
note that the respondent also argues that ‘‘this court should conclude that
the trial court’s finding regarding the factors leading to Paulo’s removal
from the [petitioner’s] custody in February, 2019, is clearly erroneous, in
that it is not supported by the evidence, or this court is left with the definite
and firm conviction that a mistake has been made.’’ (Emphasis added.)
We agree that this standard applies and will review the reasons for the loss of
guardianship rights in the present case under the clearly erroneous standard.
17
We recognize that, ‘‘[a]lthough the child’s wish is one factor for the
court to consider in making that decision, it is certainly not the only one.’’
(Internal quotation marks omitted.) Brown v. Brown, 132 Conn. App. 30,
38, 31 A.3d 55 (2011).
18
See Zhou v. Zhang, 334 Conn. 601, 628–30, 223 A.3d 775 (2020) (court
may rely on testimony from guardian ad litem in determining best interests
of child with respect to custody); Zilkha v. Zilkha, 180 Conn. App. 143, 177,
183 A.3d 64 (in making custody determination, court is permitted to seek
advice and accept recommendations from guardian ad litem, whose role is
to act as representative of child’s best interests), cert. denied, 328 Conn.
937, 183 A.3d 1175 (2018).
19
See part I B of this opinion.
20
Practice Book § 17-4 (a) provides in relevant part: ‘‘Unless otherwise
provided by law and except in such cases in which the court has continuing
jurisdiction, any civil judgment or decree rendered in the Superior Court
may not be opened or set aside unless a motion to open or set aside is filed
within four months succeeding the date on which notice was sent. . . .’’
21
General Statutes § 46b-6 provides in relevant part: ‘‘In any pending family
relations matter the court or any judge may cause an investigation to be
made with respect to any circumstance of the matter which may be helpful
or material or relevant to a proper disposition of the case. Such investigation
may include an examination of the parentage and surroundings of any child,
his age, habits and history, inquiry into the home conditions, habits and
character of his parents or guardians and evaluation of his mental or physical
condition. . . .’’