In re Jaccari J. ( 2014 )

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IN RE JACCARI J.*
(AC 36608)
IN RE JUSTIN J.
(AC 36609)
Sheldon, Mullins and Foti, Js.
Argued September 8—officially released October 16, 2014**
(Appeal from Superior Court, judicial district of
Fairfield, Juvenile Matters at Bridgeport, B. Kaplan, J.)
David E. Schneider, Jr., for the appellant (respon-
dent maternal grandmother).
Benjamin Zivyon, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Susan T. Pearlman, former assistant attorney
general, for the appellee (petitioner).
Barry A. Charles, for the appellee (respondent
father).
Opinion
MULLINS, J. The respondent Carol B., the maternal
grandmother of the minor children at issue in this mat-
ter (grandmother), appeals from the judgments of the
trial court removing her as guardian and custodian of
the children, Jaccari J. and Justin J., and ordering that
custody and guardianship be vested in the children’s
father, the respondent Angel J.1 On appeal, the grand-
mother claims that, after the court adjudicated the chil-
dren neglected, it improperly employed a rebuttable
presumption in favor of the children’s father when
determining in whom to vest custody and guardianship
of the children, pursuant to General Statutes § 46b-129
(j) (2), and that the use of the rebuttable presumption
was harmful. We conclude that the court’s use of a
rebuttable presumption in favor of the children’s father
during the dispositional phase of the neglect proceed-
ings was improper. That error notwithstanding, how-
ever, we further conclude, on the basis of the trial
court’s extensive uncontested factual findings and thor-
ough best interest analysis, that the grandmother has
failed to demonstrate that she was harmed by the
court’s use of a rebuttable presumption in this case.
Accordingly, we affirm the judgments of the trial court.2
On April 25, 2005, the Probate Court awarded custody
and guardianship of the children to the grandmother.3
On June 19, 2013, the petitioner, the Commissioner of
Children and Families, filed a neglect petition on behalf
of the children. After the trial on the neglect petition,
the court found that, while living with the grandmother,
the children had ‘‘been denied proper care and atten-
tion, physically, educationally, emotionally, or morally,
and [had] been permitted to live under conditions, cir-
cumstances, or associations injurious to their well-
being.’’ In its decision, the court noted that the children
have several medical and behavioral issues. They need
daily medication, and they lack exercise and healthy
eating habits.4 Appointments with doctors, nutritionists,
therapists and counselors were made for them but were
not attended, and previous therapy and medical provid-
ers discharged the children due to missed
appointments.
During its analysis of the dispositional phase of the
trial, the court engaged in a thorough examination of
and comparison between placing the children with the
grandmother and placing them with their father.5 With
respect to the grandmother, the court made the follow-
ing relevant findings. The children had resided with the
grandmother since they were infants, but her apartment
is small. The grandmother and her brother, who also
lives in the small apartment, had smoked in the home
despite the presence of the children and an oxygen
tank. The grandmother suffers from medical conditions
that limit her mobility; she is disabled. Her medical
conditions previously have caused her to be hospital-
ized, and have caused her to miss, cancel, reschedule
or be unable to schedule medical and counseling
appointments for the children. Those conditions also
hamper her ability to insure that the children get proper
medical care and therapy. She also has no means of
transportation. For months prior to trial, she refused
to allow the employees of the Department of Children
and Families to enter her home, and the trial court
stated that it was not sure whether the children were
residing there; Jaccari J. reported to a therapist that he
and his brother were residing, instead, with their great
aunt, who lives in the same apartment building as the
grandmother. The grandmother is strict with the chil-
dren and has struggled with the parenting style recom-
mended by therapists. The grandmother loves the
children and has tried to do the best that she can for
them.
With respect to the children’s father, Angel J., the
court found that he has been arrested and jailed pre-
viously; his criminal record includes felonies from the
1980s and 1990s. He does work at his father’s church
and runs errands for his father. His father, a reverend
at the church, allows Angel J., in exchange for the work
he does, to live rent free in a two-family home owned
by the church. The home is large enough for each child
to have his own room. Angel J.’s father also gives him
money for the care of the children and for food. Angel
J. has access to a car, and he transports the children
to and from school each day. He also is available to
take the children to their various medical and therapy
appointments. He always has been a part of the chil-
dren’s lives and attends church with them on Sundays,
but has a hard time saying ‘‘no’’ to them and would
bring them to McDonald’s after school. The court found,
however, that Angel J. now understands that the chil-
dren need to be on a strict diet. Angel J. loves the
children.
Significantly, the court found that the children’s
father could best tailor the food intake of the children
and regulate their meals. The children were more open
and acted differently when attending therapy sessions
with their father. The court also found that the father
could better follow the recommendations of the thera-
pists in addressing the behavioral issues of the children
at home.
Ultimately, the court concluded that the children had
‘‘a long-term continuous relationship with their biologi-
cal parent, the father. [The grandmother] has been
unable to provide for the boys’ medical and therapy
needs and follow through with the recommendations
of the therapists on a consistent basis. Their housing
is now in question as to the condition of the apartment,
the boys’ accommodations in the apartment and
whether the boys actually reside in that apartment. The
father has his own first floor unit with plenty of room
for the boys. He has transportation to take them to
school and to all their medical and therapy appoint-
ments. He has the flexibility with his schedule to accom-
modate their needs. He is their natural parent. There
is a presumption that the boys should be with a natural
parent. The court knows that presumption is rebuttable
but, in light of all the above, there has been insufficient
evidence presented to rebut the presumption.’’
The court went on to find, by a fair preponderance
of the evidence, that ‘‘it is in the best interest of both
[children] that guardianship and custody be transferred
to their father, Angel J., and that there be a period of
protective supervision for [six] months; that Angel J.
sign specific steps to ensure the boys’ medical and
therapeutic needs are met; that he conform their diet
to the recommendations of their doctors and the nutri-
tionist; and that he allow [the grandmother] visitation
with the boys.’’6 Thereafter, the grandmother filed the
present appeal.
The petitioner filed motions for articulation
requesting that the court articulate whether it had
found, on the basis of the evidence, that the children’s
father was suitable and worthy to care for each of the
children. The grandmother offered no objection to the
petitioner’s motions, and the court responded by filing
an articulation related to each of the children, setting
forth the same findings in each articulation:
‘‘The court finds that Angel J., the biological father
of [the children] is suitable and worthy. This is based
on the record and findings stated in the court’s decision,
including, but not limited to, the following:
‘‘1. The father has had a loving, active and continuous
relationship with [the children] since [they were] young.
He was transporting [them] to school every day and to
medical and therapy appointments when allowed. He
had weekend visitations with [the children].
‘‘2. He has a motor vehicle to take [the children]
to [their] medical, therapy and specialist appointments
that are necessary to address [their] specialized needs.
‘‘3. The father resides on the first floor of a house
that has ample room for [the children]. They each have
their own room.
‘‘4. The father has the time necessary to take [the
children] to all [their] required appointments.
‘‘5. The father can prepare and supervise [the chil-
dren’s] dietary needs.’’
On appeal, the grandmother does not contest the
court’s finding of neglect or any of the extensive find-
ings supporting the court’s disposition in this case; she
argues only that, after adjudicating the children
neglected, the court improperly used a rebuttable pre-
sumption in favor of the children’s father, and that this
was harmful because the result of the proceedings may
have been different had the presumption not been
employed.7 Under the uncontested facts of this case,
which the court set forth in specific detail in its memo-
randum of decision, we conclude that, although the
use of the rebuttable presumption was improper, the
grandmother has failed to demonstrate that the error
was harmful.
Here, the grandmother contends that, although there
is no rebuttable presumption found in § 46b-129 (j) (2),
which applies in this case, the court improperly used
a presumption in favor of the parent when it was
determining in whom to vest custody and guardianship
of the children. We agree.
‘‘When construing a statute, [o]ur fundamental objec-
tive 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.’’ (Internal quotation
marks omitted.) In re Elvin G., 310 Conn. 485, 499–500,
78 A.3d 797 (2013).
The parties agree that, after the court adjudicated the
children neglected in this case, the decision to transfer
custody and guardianship was governed by § 46b-129
(j) (2), which provides: ‘‘Upon finding and adjudging
that any child or youth is uncared-for, neglected or
abused the 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 guardian-
ship 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, including, 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 guard-
ian with protective supervision by the Commissioner
of Children and Families subject to conditions estab-
lished by the court.’’
Unlike General Statutes § 46b-56b, which provides
that ‘‘[i]n any dispute as to the custody of a minor child
involving a parent and a nonparent, there shall be a
presumption that it is in the best interest of the child
to be in the custody of the parent, which presumption
may be rebutted by showing that it would be detrimental
to the child to permit the parent to have custody,’’ § 46b-
129 (j) (2) contains no presumption in favor of a parent.
It is clear that § 46b-56b does not apply to this proceed-
ing, and all parties concede this. See also footnotes 6
and 7 of this opinion. The parties also agree that the
court’s use of the presumption in this case was error,
and, on the basis of the plain language of § 46b-129 (j)
(2), we agree. We have found no applicable case law that
would lead us to a different conclusion. Accordingly, we
conclude that the court improperly applied a rebuttable
presumption in favor of the father in this case.
Next, the grandmother claims that the use of this
presumption by the trial court was harmful because the
results of the proceedings may have been different had
the court not employed such a presumption. We
disagree.
The parties agree that our standard of review requires
the grandmother to prove that the court’s use of a rebut-
table presumption in favor of the father was harmful.
See generally In re Avirex R., 151 Conn. App. 820,
833–34, 96 A.3d 662 (2014) (despite court’s use of
improper subsection of § 46b-129, impropriety was
harmless because court properly found that transfer
of guardianship was in child’s best interest and that
guardian was suitable and worthy); In re Elvin G.,
supra, 310 Conn. 506 (court’s failure to provide statuto-
rily mandated steps was harmless because, ‘‘even if
such steps had been provided, they could not have
made a difference in the trial court’s finding of the
respondent’s failure to rehabilitate’’). ‘‘Errors of law
constitute no ground of reversal if they are immaterial
or such as have not injuriously affected the appellant.’’
(Internal quotation marks omitted.) Wood v. Connecti-
cut Savings Bank, 87 Conn. 341, 350, 87 A. 983 (1913).
‘‘It is axiomatic that to require reversal, error must be
harmful. See General Statutes § 52-265 . . . .’’ (Cita-
tions omitted.) In re Juvenile Appeal (Docket No.
10718), 188 Conn. 259, 266, 449 A.2d 165 (1982) (Shea,
J., dissenting).
‘‘Questions of custodial placement generally are
resolved by a factbound determination of what is in
the best interest of the child . . . as shown by a fair
preponderance of the evidence. . . . To determine
whether a custodial placement is in the best interest of
the child, the court uses its broad discretion to choose a
place that will foster the child’s interest in sustained
growth, development, well-being, and in the continuity
and stability of its environment. . . . We have stated
that when making the determination of what is in the
best interest of the child, [t]he authority to exercise the
judicial discretion under the circumstances revealed by
the finding is not conferred upon this court, but upon
the trial court . . . . Nothing short of a conviction that
the action of the trial court is one which discloses a
clear abuse of discretion can warrant our interference.
. . . [G]reat weight is given to the judgment of the trial
court because of [the court’s] opportunity to observe
the parties and the evidence. . . . [Appellate courts]
are not in a position to second-guess the opinions of
witnesses, professional or otherwise, nor the observa-
tions and conclusions of the [trial court] when they are
based on reliable evidence.’’ (Internal quotation marks
omitted.) In re Isaiah J., 141 Conn. App. 474, 476, 62
A.3d 635, cert. denied, 308 Conn. 936, 66 A.3d 498 (2013).
In the present case, the court very clearly set forth
its reasons for transferring custody and guardianship
of the children from the grandmother to the children’s
father. It is evident from the court’s findings that it
believed that the grandmother loves these children and
that she has provided for them to the best of her ability.
Nevertheless, the grandmother has, inter alia, extensive
health issues that render her unable to provide for the
particular needs of these children, despite her desire
to do so.
The court, in turn, found that the children’s father
has the desire and the means to care for his children
and to address their particular medical and behavioral
concerns. It further found that it would be in the best
interest of the children for custody and guardianship
to be transferred to the father, and that he is a suitable
and worthy guardian. The grandmother does not con-
test any of the court’s findings, and they are fully sup-
ported by the record. Accordingly, although the court
improperly stated that there was a rebuttable presump-
tion in favor of the parent, it is clear, based on its
best interest analysis, that the presumption played an
insignificant role, if any, in the court’s reasoned deci-
sion; the court made the necessary findings pursuant
to § 46b-129 (j) (2) to support its decision to transfer
custody and guardianship to Angel J. Accordingly, we
affirm that decision.
The judgments are 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.
** October 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 mother of the children, the respondent Janielle B., has filed a position
paper in this court adopting the brief of the grandmother. During the trial,
the attorney for the children asked that the children remain with the grand-
mother. On appeal, however, the attorney for the children and the attorney
for the respondent father have filed position papers adopting the brief of
the petitioner, the Commissioner of Children and Families.
2
We note that the grandmother filed separate appeals in this case from
each of the individual judgments. Both judgments arise from the same
memorandum of decision and both appeals are based on the same substan-
tive issues, namely, whether the court improperly employed a rebuttable
presumption and whether the use of that presumption was harmful. As a
result, we will resolve both appeals in the same opinion in the interests of
judicial economy.
3
There is nothing in the record that indicates the circumstances sur-
rounding the Probate Court’s award of custody and guardianship to the
grandmother.
4
The court set forth lengthy and significant factual findings in its memoran-
dum of decision with respect to the grandmother’s medical condition as
well as the medical conditions of the minor children. It serves no useful
purpose to repeat all of the court’s specific findings as to these issues in
this opinion, except to note generally how these issues impacted the court’s
ultimate findings regarding the best placement for the children.
5
A careful review of the electronic transcripts in this case also reveals
that in March, 2013, the father apparently had filed, in the family court, a
petition for custody of the children. The exact status of that petition is not
part of our record. It also is not clear whether the trial court had a copy
of that petition or whether it considered the filing thereof when rendering
the judgments in this case.
6
The court issued the relevant orders on form JD-JM-65, generally used
in neglect proceedings pursuant to § 46b-129 (j), adjudicating the children
neglected and ordering that custody and guardianship be vested in the
children’s father, subject to six months of protective supervision.
At the same time, however, the court also issued two orders on form JD-
JM-76, which traditionally applies in revocation of commitment proceedings
under General Statutes § 46b-129 (m), ordering the revocation of the custody
and guardianship vested in the grandmother, and ordering that custody
and guardianship revert to the children’s father with six months protective
supervision. The propriety, import or relevance of this order has not been
raised, briefed or addressed by the parties, nor was a copy of the order
made part of the grandmother’s appendix.
7
In its memorandum of decision, the court did not cite to any statute
upon which it relied in applying the presumption at issue. We note, however,
that the petitioner, in an argument to the trial court, cited General Statutes
§ 46b-56b in support of the position that the court should transfer custody
and guardianship to Angel J.; the grandmother did not object to or argue
the inapplicability of that statute. Thus, we presume that the court was
referring to § 46b-56b when it stated that there was a rebuttal presumption
in favor of the father in this case. Section 46b-56b contains a statutory
rebuttable presumption in favor of the parent in custody disputes between
a parent and a nonparent. We use this opportunity to reiterate that the
applicability of § 46b-56b is restricted to dissolution and custody matters
brought under chapter 815j of the General Statutes and is not applicable in
cases that do not arise from dissolution of marriage, legal separation or
annulment actions. In re Cameron C., 103 Conn. App. 746, 754, 755, 930
A.2d 826 (2007) (‘‘[t]he plain meaning of § 46b-56[b], read within the context
of related statutes within chapter 815j, makes clear that this provision is
intended to apply only in dissolution of marriage, legal separation and annul-
ment actions’’), cert. denied, 285 Conn. 906, 942 A.2d 414 (2008).