In re Zakai F.

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IN RE ZAKAI F.*
(AC 41531)
DiPentima, C. J., and Alvord and Bear, Js.
Syllabus
The respondent mother appealed to this court from the judgment of the
trial court denying her motion for the reinstatement of guardianship
of her minor son, Z. The mother voluntarily had agreed to relinquish
temporary guardianship of Z to his maternal aunt, the petitioner. Subse-
quently, when the mother requested that the petitioner return Z to her
care, the petitioner did not respond and, instead, filed a petition for the
custody and guardianship of Z in the Probate Court, which issued an
order vesting the petitioner with temporary custody of Z. Thereafter,
the matter was transferred from the Probate Court to the Superior Court,
where the parties entered into a stipulated agreement that, inter alia,
transferred guardianship of Z to the petitioner. Subsequently, the trial
court denied the mother’s motion to reinstate her guardianship rights
to Z and granted the motion filed by the guardian ad litem to suspend
overnight visitation. Specifically, the court found that, even though the
mother was capable of adequately providing for Z and there had never
been a judicial adjudication of neglect or abuse of Z, reinstatement of
the mother’s guardianship rights was not in Z’s best interests. On appeal,
the mother claimed, inter alia, that the trial court violated her fundamen-
tal right to the care and custody of Z under the United States constitution
by denying her motion for the reinstatement of guardianship without a
showing that she was unfit, and without a finding by clear and convincing
evidence that Z would be at a substantial risk of physical or emotional
harm if the guardianship of him by the petitioner were terminated. Held:
1. The respondent mother’s claim on appeal that the trial court violated her
fundamental right to the care and custody of Z was not properly pre-
served, the mother having failed to object to the trial court’s application
of the best interest of the child or fair preponderance of the evidence
standards; the mother’s constitutional claims on appeal, that it was the
court’s sole reliance on the best interest of the child standard that
violated her fundamental parental rights, and that the court should have
required the petitioner to prove physical and emotional harm to Z by clear
and convincing evidence in order to defeat the asserted presumption
that the mother, as a fit parent, would act in the best interest of Z, were
not distinctly raised before the court, where the mother merely requested
that the court apply the presumption that reinstatement of her guardian-
ship was in Z’s best interest.
2. The respondent mother’s unpreserved claims that the trial court failed
to apply the constitutional presumption that she, as a fit parent, would
act in the best interest of Z, and that the court’s failure to apply the
clear and convincing evidence standard, which she claimed should apply
in reinstatement of guardianship cases concerning a fit parent, violated
her constitutional rights to the care and custody of Z, failed under
the third prong of State v. Golding (213 Conn. 233), as the alleged
constitutional violation did not exist; the trial court properly determined
that the petitioner and Z had presented evidence, including evidence
that Z felt unsafe and insecure when he was with the mother for overnight
visitation, which rebutted the presumption that it was in Z’s best interest
to be returned to the mother’s care, and the trial court, in determining Z’s
best interests, properly applied the fair preponderance of the evidence
standard required by our statutes, rules of practice, and the precedent
of our Supreme Court, which had previously concluded that the fair
preponderance of the evidence standard satisfied the constitutional mini-
mum of fundamental fairness in third-party custody disputes.
3. The trial court did not abuse its discretion in finding that it was in Z’s
best interest to remain in the care, custody, and guardianship of the
petitioner, as the court properly considered evidence presented by the
petitioner and Z rebutting the presumption that reunification with the
respondent mother was in Z’s best interest.
Argued September 7—officially released October 30, 2018**
Procedural History
Petition by the maternal aunt for the custody and
guardianship of the respondent mother’s minor child,
brought to the Probate Court for the district of Derby,
which issued an order vesting the petitioner with tempo-
rary custody of the child; thereafter, the matter was
transferred to the Superior Court in the judicial district
of Ansonia-Milford, where the respondent filed a motion
to vacate the order of temporary custody; subsequently,
the matter was transferred to the Superior Court in the
judicial district of New Haven, Juvenile Matters, where
the parties entered into a stipulated agreement that,
inter alia, transferred guardianship of the child to the
petitioner; thereafter, the court, Conway, J., denied
the respondent’s motion to reinstate her guardianship
rights to the child, granted the motion filed by the guard-
ian ad litem to suspend overnight visitation, and ren-
dered judgment thereon, from which the respondent
appealed to this court. Affirmed.
Benjamin M. Wattenmaker, assigned counsel, for the
appellant (respondent mother).
Albert J. Oneto IV, assigned counsel, for the appel-
lee (petitioner).
David B. Rozwaski, for the minor child.
Louise Truax and Leslie Jennings-Lax filed a brief
for the American Academy of Matrimonial Lawyers,
Connecticut Chapter, as amicus curiae.
Opinion
BEAR, J. The respondent mother, Kristi F., appeals
from the judgment of the trial court denying her motion
for reinstatement of guardianship of her minor son,
Zakai F. The respondent claims that the court violated
her fundamental right to the care and custody of Zakai
under the United States constitution by denying her
motion (1) without a showing that she was unfit, and
(2) without a finding by clear and convincing evidence
that Zakai would be at a substantial risk of physical or
emotional harm if the current guardianship of him by
his aunt, the respondent’s sister, were terminated. The
respondent additionally claims that the court abused
its discretion in concluding that her reinstatement as
guardian was not in Zakai’s best interest. We disagree
with the respondent’s claims and, accordingly, affirm
the judgment of the court.
The record reveals the following facts and procedural
history. In approximately July, 2013, the respondent
voluntarily agreed to relinquish, and the Probate Court
therefore ordered, temporary guardianship of Zakai to
the petitioner, Nikki F., who is the respondent’s sister
and Zakai’s maternal aunt. The parties agreed that Zakai
would be cared for temporarily by the petitioner while
the respondent pursued employment opportunities,
secured funds to obtain appropriate housing, and
obtained a reliable vehicle. The respondent reassumed
guardianship and care of Zakai in late January or early
February, 2014. Shortly after returning to the respon-
dent’s care, Zakai was physically assaulted and seri-
ously injured by the respondent’s live-in boyfriend,
Montreal C., while the respondent was at work.1 Both
the respondent and Montreal C. were criminally
charged after the assault. The charges against the
respondent were ultimately dropped, but the charges
against Montreal C. continued to be prosecuted.2
Because of the respondent’s work commitments and
Zakai’s emotional and physical state following Montreal
C.’s assault,3 the respondent agreed that Zakai again
would stay temporarily with the petitioner.4 Approxi-
mately four or five days after Zakai was placed in the
petitioner’s care, the respondent requested that the peti-
tioner again return Zakai to her care. The petitioner did
not respond to the respondent’s request, but instead,
on February 18, 2014, filed a petition for custody and
guardianship in the Probate Court for the district of
Derby, which issued an ex parte order vesting her with
temporary custody of Zakai.
On July 9, 2014, the respondent filed a motion in the
Probate Court for transfer of the case to the Superior
Court. On July 16, 2014, the motion was granted and
the case was transferred to the family division of the
Superior Court in Milford. On August 1, 2014, the
respondent filed a motion to vacate the Probate Court
order granting the petitioner temporary custody of
Zakai. On September 29, 2014, by agreement of the
parties, the court ordered that (1) a guardian ad litem
be appointed for Zakai; (2) the respondent continue to
engage in anger management counseling, therapy, and
parenting classes; and (3) the respondent be afforded
supervised visitation with Zakai at a location other than
the home of the petitioner up to twice a week, subject
to the requirements that the length of visitation be deter-
mined by the petitioner, visitation occur only at sites
acceptable to the petitioner, and only persons accept-
able to the petitioner be present during visitation.
In the fall of 2014, the respondent was arrested after
an incident in a public park involving the petitioner and
a maternal uncle of Zakai, and she was charged with
threatening and breach of peace. A criminal protective
order was issued barring any contact between the
respondent and the petitioner, but reserving for the
family division of the Superior Court the issue of the
appropriateness of the respondent’s continued contact
with Zakai.5 On April 6, 2015, the court granted the
petitioner’s motion to have the case transferred to the
juvenile division of the Superior Court in New Haven.
On June 18, 2015, the court, Conway, J., ordered the
Commissioner of Children and Families (commis-
sioner) to conduct a guardianship study. The guardian
ad litem moved for a court ordered psychological evalu-
ation of the parties, and that motion was granted on
December 29, 2015.
A hearing on the respondent’s 2014 motion to vacate
the order of temporary custody and her motion to trans-
fer guardianship of Zakai to her was scheduled on Sep-
tember 21 and 22, 2016. On September 21, 2016,
however, the court accepted and approved an
agreement resolving all outstanding issues. Pursuant to
this agreement, the court transferred guardianship of
Zakai to the petitioner, ordered unsupervised daytime
visits between the respondent and Zakai, and ordered
that, until the protective order was resolved or modi-
fied, the petitioner would have a third party present in
her home while exchanging custody of Zakai with the
respondent. The stipulation also required that any fur-
ther expansions of the visitation schedule, including
overnight visits, would be arranged through family
therapy.
On June 27, 2017, the respondent filed another motion
to reinstate her guardianship rights to Zakai. Subse-
quently, the court again ordered the commissioner to
conduct and complete a guardianship study pursuant
to General Statutes § 46b-129 (n). The respondent sub-
sequently filed a motion for overnight visitation on
November 3, 2017, which was heard with her motion
for reinstatement of guardianship. The hearing on the
motions took place on December 5, 11, and 12, 2017.
On December 12, 2017, the court elected to hold in
abeyance any definitive ruling on the motion to reinstate
the respondent’s guardianship rights and instead
ordered that Zakai immediately commence overnight
visits with the respondent. The court further ordered
that the respondent exclusively was to care for Zakai
during the overnight visits and that there was to be no
contact between Zakai and any unrelated male adults.
On February 2, 2018, the guardian ad litem moved
that the court suspend overnight visitation, alleging that
the respondent had violated the court’s December 12,
2017 order by having an unrelated male stay at her
home while Zakai was there. On February 15, 2018, the
court reconvened the proceedings to hear testimony
and receive other evidence regarding the guardian ad
litem’s motion on behalf of Zakai to suspend overnight
visitation and the respondent’s June, 2017 motion to
reinstate her guardianship rights. The court heard addi-
tional testimony from numerous witnesses on February
15, February 28, and March 1, 2018.
On March 1, 2018, the court issued its memorandum
of decision denying the respondent’s motion for rein-
statement of her guardianship rights and granting the
guardian ad litem’s motion on behalf of Zakai to suspend
overnight visitation. The court found that, despite the
fact that there had never been a judicial adjudication
of neglect or abuse of Zakai, reinstatement of the
respondent’s guardianship rights pursuant to General
Statutes § 45a-611 (b) was not in Zakai’s best interest.
The court stated that the respondent had demonstrated
that as of March 1, 2018, she was capable of adequately
providing for Zakai, that they shared a loving parent-
child like bond, and that the respondent and Zakai
enjoyed quality time together when Zakai felt he was
in a safe environment. The court, however, weighed
these findings against testimony and evidence regarding
Zakai’s emotional and physical debilitation before and
after overnight visits with the respondent, and his need
for permanency. Specifically, the court credited the tes-
timony of Zakai’s first grade teacher, Zakai’s therapist,
and the petitioner rather than that of the respondent.
The court ultimately found that, ‘‘[g]iven the totality
of the circumstances in [Zakai’s] life, the degree of
early childhood trauma he has already experienced,
the length of time (four years) he has spent in [the
petitioner’s] care, his [attention deficit hyperactivity
disorder] diagnosis and his behavioral and emotional
issues, and the lack of safety and security [he] feels
(after three years of working on the [mother-child]
bond), to abruptly remove [Zakai] from [the petition-
er’s] care and home, particularly given his behaviors
since December of 2017, would be cruel, inflict devasta-
ting loss and pain on Zakai, and likely exacerbate rather
than ameliorate [Zakai’s] alarming behaviors.’’ The
court concluded that, based on a fair preponderance
of the evidence, it was not in Zakai’s best interest to
return to the respondent’s care. This appeal followed.
I
A
The respondent claims that the court violated her
fundamental right to the care and custody of Zakai
under the United States constitution by denying her
motion for reinstatement of guardianship (1) without
a showing that she was unfit, and (2) without a finding
by clear and convincing evidence that Zakai would be
at a substantial risk of physical or emotional harm if
the current guardianship of him by the petitioner were
terminated. The respondent argues that, as applied to
the respondent, § 45a-611 violates her fundamental lib-
erty interest in the care and custody of her son. The
petitioner counters that the respondent’s constitutional
arguments were not preserved, the respondent’s argu-
ments are not reviewable under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),
and that the court did not abuse its discretion in
determining that reinstatement of guardianship in the
respondent was not in Zakai’s best interest.
We begin by looking, pursuant to Practice Book § 60-
5,6 to the record to determine whether the respondent’s
claims were properly raised before the trial court.
‘‘[B]ecause our review is limited to matters in the
record, we . . . will not address issues not decided
by the trial court.’’ (Internal quotation marks omitted.)
Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 171, 745
A.2d 178 (2000). ‘‘[T]he sine qua non of preservation is
fair notice to the trial court . . . .’’ (Citation omitted.)
State v. Jorge P., 308 Conn. 740, 753–54, 66 A.3d 869
(2013). ‘‘[T]he determination of whether a claim has
been properly preserved will depend on a careful review
of the record to ascertain whether the claim on appeal
was articulated below with sufficient clarity to place
the trial court on reasonable notice of that very same
claim.’’ Id., 754.
The following additional procedural history is rele-
vant to this issue. During oral argument to the court
on December 12, 2017, concerning the respondent’s
motions for overnight visitation and reinstatement of
guardianship, the respondent’s counsel made the fol-
lowing statements referencing the best interest of the
child standard in the context of the requested transfer
of guardianship:
‘‘[The Respondent’s Counsel]: [I]n . . . Connecticut,
the law [set forth in Practice Book §] 35a-20 . . .
requires proof by [a] fair preponderance of the evidence
that the circumstances that [led] to the original transfer
of guardianship . . . no longer exist. And then, sec-
ondly, that it’s in the best interest of the child for guard-
ianship to be returned to the parent.
‘‘So, now we turn to the best interest argument. [The
respondent] has an appropriate home. She earns a living
and is able to provide for her family. She has a happy,
healthy, three year old child, who has absolutely no
[Department of Children and Families (department)]
involvement. She’s long free of the criminal justice sys-
tem. And even according to [the department] there are
no safety concerns. The previous safety concerns that
[the department] had, you heard testimony that she
believed that she doesn’t have those anymore. Zakai
expresses to [the respondent] that he wants to be home
with her. So, if everything weighs heavily towards reuni-
fication, what’s left to talk about [is] best interest.’’
The respondent’s § 45a-611 constitutional claim,
raised for the first time on appeal, is based, in part, on
the court’s March, 2018 finding that she had rehabili-
tated and had become able to care for and support
Zakai: ‘‘After having carefully consider[ed] the testi-
mony and evidence from the December, 2017 through
March 1, 2018 court proceedings, the court finds the
reasons and events that prompted the agreed to 2016
transfer of guardianship have been sufficiently amelio-
rated. [The respondent] is capable of providing Zakai
with appropriate housing, nutrition and clothing, and
she is capable of meeting his educational, medical and
physical safety needs. [The respondent] and Zakai share
a loving parent-child like bond, and when [Zakai] feels
he is in a safe environment, [the respondent] and [Zakai]
enjoy quality time together.’’ (Footnote omitted.) In
arguing that the petitioner had to prove, and the court
had to find, that the respondent was an unfit parent in
order to avoid the return of Zakai to her guardianship,
the respondent’s attorney has directed this court, inter
alia, to Santosky v. Kramer, 455 U.S. 745, 753, 102 S.
Ct. 1388, 71 L. Ed. 2d 599 (1982), which provided that
‘‘[t]he fundamental liberty interest of natural parents in
the care, custody, and management of their child does
not evaporate simply because they have not been model
parents . . . .’’ The respondent also cited additional
case law for the proposition that there is a presumption
that it is in the best interest of the child to be with his
natural parent.7
The respondent asserts that many of these same
claims were also made to the court during her closing
argument on February 28, 2018. Despite the respon-
dent’s assertions to the contrary, however, the constitu-
tional claim she now raises on appeal was not distinctly
raised before the court. In her argument to the court,
the respondent requested that the court apply the pre-
sumption that reinstatement of her guardianship was
in Zakai’s best interest.8 On appeal, however, the
respondent now claims that it was the court’s sole reli-
ance on the best interest of the child standard that
violated her fundamental parental rights. She also
claims that the court should have required the petitioner
to prove physical and emotional harm to Zakai by clear
and convincing evidence in order to defeat the
asserted presumption.
The respondent in effect now argues that because
she was found to be a fit parent at the time of trial, her
history as a parent who for an extended period of time
was unable to provide a safe and secure home for Zakai
should be ignored. The court, however, did not ignore,
but instead listed in its December 12, 2017 ruling at
least some of the respondent’s essentially undisputed,
more serious parental failings that had caused physical
and emotional harm to Zakai. The court found: ‘‘Clearly,
up until the last year and a half, [the respondent] has
struggled to achieve and sustain a lifestyle conducive
to having Zakai return to her care. It took her a long
time, and some would argue too long, to disengage from
[Montreal C.]. . . . [O]ne of the remaining obstacles,
that needs to be navigated now, is whether the [respon-
dent’s choices] and who she allows Zakai to be cared
for and to have contact with are sound and safe choices.
[The] court knows that there is no one in this courtroom
today, [and] no one more so than [the petitioner and
the respondent], that want Zakai to be placed in physical
or emotional jeopardy. The terrible, heartbreaking
death of [the respondent’s] eldest infant daughter, who
died while [the respondent] left the daughter in the
child’s father’s care, and then subsequently, Zakai’s
beating by [Montreal C.], again a caregiver chosen by
the mother . . . . These traumatic, tragic events
occurred due in large part to choices and exercises in
judgment by [the respondent]. Zakai cannot afford to
have history repeat itself.’’
Nowhere in the court proceedings did the respondent
claim that application of the best interest of the child
standard conflicted with the constitutional presumption
that she is a fit parent. In the court proceedings, she
made the factual argument that, because she had reha-
bilitated, it was in Zakai’s best interest to be returned
to her guardianship. ‘‘[A] party cannot present a case
to the trial court on one theory and then seek appellate
relief on a different one. . . . For this court to . . .
consider [a] claim on the basis of a specific legal ground
not raised during trial would amount to trial by ambus-
cade, unfair both to the [court] and to the opposing
party.’’ (Citation omitted; internal quotation marks
omitted.) Albemarle Weston Street, LLC v. Hartford,
104 Conn. App. 701, 709–10, 936 A.2d 656 (2007). Addi-
tionally, the respondent did not raise any challenge to
the fair preponderance standard of proof utilized by
the court.9 Because the respondent did not object to
the court’s application of the best interest of the child
or fair preponderance of the evidence standards, we
conclude that the respondent’s claim on appeal was
not preserved.
B
The respondent requests that, in the event we con-
clude that her claim is not preserved, we nevertheless
review it pursuant to the four part test set forth in State
v. Golding, supra, 213 Conn. 239–40, as modified by In
re Yasiel R., supra, 317 Conn. 781. Under Golding, the
respondent ‘‘can prevail on a claim of constitutional
error not preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitu-
tional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . .
exists and . . . deprived the [respondent] of a fair trial;
and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.’’
(Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 239–40, as modified by In re Yasiel R., supra,
781. ‘‘The first two steps in the Golding analysis address
the reviewability of the claim, while the last two steps
involve the merits of the claim.’’ (Internal quotation
marks omitted.) State v. Britton, 283 Conn. 598, 615,
929 A.2d 312 (2007). As such, we must address whether
the respondent has sufficiently satisfied her burden
under the first two Golding prongs before we can turn
to the merits of her claim on appeal.
‘‘The [respondent] bears the responsibility for provid-
ing a record that is adequate for review of [her] claim
of constitutional error. If the facts revealed by the
record are insufficient, unclear or unambiguous as to
whether a constitutional violation has occurred, we will
not attempt to supplement or reconstruct the record,
or to make factual determinations, in order to decide
the [respondent’s] claim.’’ State v. Golding, supra, 213
Conn. 240. ‘‘To determine whether the record is ade-
quate to ascertain whether a constitutional violation
occurred, we must consider the respondent’s alleged
claim of impropriety and whether it requires any factual
predicates.’’ In re Azareon Y., 309 Conn. 626, 636, 72
A.3d 1074 (2013). In other words, because the respon-
dent claims her fundamental rights as a parent were
violated by the court’s sole reliance on the best interest
of the child standard in denying her motion to reinstate
her guardianship rights, the record must adequately
reflect that the respondent is not an unfit parent. It is
clear from the record that there was never a judicial
finding of neglect or abuse as to Zakai by the Probate
Court, the family division of the Superior Court, or
the juvenile division of the Superior Court, that the
petitioner’s guardianship of Zakai was with the respon-
dent’s consent, and that the respondent was a rehabili-
tated parent at the time of the filing of her motion.
Furthermore, the record includes a thorough memoran-
dum of decision from the court, in addition to tran-
scripts of the entire trial and the exhibits submitted
at trial. Accordingly, we conclude that the record is
adequate to review the respondent’s claim of error. As
such, the first Golding prong is satisfied.
‘‘The [respondent] also bears the responsibility of
demonstrating that [her] claim is indeed a violation of
a fundamental constitutional right.’’ State v. Golding,
supra, 213 Conn. 240. A parent’s interest in the care,
custody, and control of his or her children has been
recognized as ‘‘perhaps the oldest of the fundamental
liberty interests recognized by [the United States
Supreme] Court.’’ Troxel v. Granville, 530 U.S. 57, 65,
120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); see also Roth
v. Weston, 259 Conn. 202, 216, 789 A.2d 431 (2002). The
respondent claims this constitutional right has been
violated. As such, the respondent also satisfies the sec-
ond Golding prong.
Because we have determined that the respondent has
satisfied the first two Golding prongs, we turn now
to the third prong, namely, whether there has been a
constitutional violation that deprived the respondent
of a fair trial. See State v. Golding, supra, 213 Conn.
241. The respondent appears to raise two arguments in
regard to her claim of a constitutional violation. We
address each argument in turn.
First, the respondent argues that the trial court failed
to apply the constitutional presumption that she, as a
fit parent, will act in the best interest of Zakai. ‘‘While
the rights of parents qua parents to the custody of their
children is an important principle that has constitu-
tional dimensions . . . we recognize that even parental
rights are not absolute.’’ (Citations omitted.) In re Juve-
nile Appeal (Anonymous), 177 Conn. 648, 661, 420 A.2d
875 (1979). Although we are cognizant of the respon-
dent’s claim that she, having never been adjudicated as
an unfit parent, was entitled to a presumption that she
would act in Zakai’s best interest, such a presumption
is not absolute, but may instead be rebutted by contra-
dictory evidence of Zakai’s best interest. In the context
of child custody disputes, ‘‘[i]t is well established as a
general rule that the welfare and best interests of the
child are controlling elements in the determination of
all disputes . . . and the statutes recognizing a right
to the custody of the child in either the father or mother
must stand aside where the recognition of such a right
would materially interfere with the paramount right of
the child to have its welfare considered and conserved
by the court. The welfare of the child under the above
rule may require that its custody be denied the parent
and awarded to others.’’ (Internal quotation marks omit-
ted.) In re Appeal of Kindis, 162 Conn. 239, 242–43,
294 A.2d 316 (1972).
In In re Juvenile Appeal (Anonymous), our Supreme
Court considered an appeal where the child had devel-
oped a parent-child relationship with her foster parents.
‘‘Balancing all of the evidence presented to it, the Juve-
nile Court concluded that during the period of separa-
tion between the child and her natural mother there
had developed between the child and her foster parents
a matured parent-child relationship. Recognizing that
cause for commitment no longer existed from the time
the petition for revocation was brought, the court never-
theless concluded that separation of the child from her
foster family at that time would be contrary to her
best interests, and consequently denied the plaintiff’s
petition for revocation. . . . Clearly the burden is upon
the person applying for the revocation of commitment
to allege and prove that cause for commitment no longer
exists. Once that has been established, as in this case,
the inquiry becomes whether a continuation of the com-
mitment will nevertheless serve the child’s best inter-
ests. On this point, when it is a natural parent who has
moved to revoke commitment, the state must prove
that it would not be in the best interests of the child
to be returned to his or her natural parent. While it is
certainly true, as we have held, that parents have no
natural right to the custody of their children that can
prevail over a disposition [a]ffecting the child’s best
interests; [id., 243]; In re Appeal of Dattilo, 136 Conn.
488, 495–96, 72 A.2d 50 (1950); parents are entitled to
the presumption, absent a continuing cause for commit-
ment, that revocation will be in the child’s best interests
unless the state can prove otherwise.’’ (Citation omit-
ted; emphasis omitted; footnotes omitted.) In re Juve-
nile Appeal (Anonymous), supra, 177 Conn. 658–60.
In the present case, the court properly considered
evidence from both the petitioner and Zakai, through
their attorney and guardian ad litem, rebutting the pre-
sumption that reunification with the respondent was
in Zakai’s best interest. The court recognized that the
respondent had taken important steps in establishing
herself as a fit parent and noted that her accomplish-
ments toward this endeavor ‘‘factored heavily’’ in its
December, 2017 order to commence overnight visits.
The court found, however, that overnight visitation had
subjected Zakai to ‘‘unjustifiable and debilitating emo-
tional stress.’’ Zakai’s ability to live with the respondent
was ‘‘hampered by the reality that Zakai does not feel
safe and secure in [the respondent’s] care.’’ The court
credited testimony from Zakai’s first grade teacher and
therapist in considering the deterioration in Zakai’s
mental and emotional state because of the overnight
visitation. ‘‘[B]y increasing Zakai’s time in [the respon-
dent’s] care and having overnights in [her] home, Zakai
feels less safe.’’ The court found important Zakai’s need
for stability, and his strong desire to know his one
‘‘forever’’ home. (Internal quotation marks omitted.)
Thus, because the court properly determined that the
petitioner and Zakai rebutted the constitutional pre-
sumption that it was in Zakai’s best interest to be
returned to the respondent’s care, the respondent has
failed to satisfy the third Golding prong as to the consti-
tutional presumption that because she was a fit parent,
the best interest standard required that Zakai be
returned to her.
Second, the respondent argues that the ‘‘clear and
convincing’’ evidence standard, as articulated by our
Supreme Court in Roth v. Weston, supra, 259 Conn. 232,
should apply in reinstatement of guardianship cases
concerning a fit parent, and that the trial court’s failure
to do so violated her constitutional rights to the care
and custody of Zakai. Our Supreme Court has noted
that ‘‘the third prong of Golding does not require that
there be existing Connecticut precedent already recog-
nizing a constitutional right. Instead, a party satisfies
the third prong of Golding if he or she makes a showing
sufficient to establish a constitutional violation.’’ In re
Yasiel R., supra, 317 Conn. 780–81. The question at
issue in In re Yasiel R. was whether the due process
clause of the fourteenth amendment to the United
States constitution required that a trial court canvass
a parent about his or her decision not to contest exhibits
presented against him or her in a parental termination
proceeding and to waive his or her right to present a
case at trial, a question that had not yet been addressed
by our Supreme Court. See id., 781–82.
Similarly, the respondent in the present case raises
an argument that conflicts with current statutory and
Practice Book provisions and precedent, namely,
whether the due process clause of the fourteenth
amendment to the United States constitution requires
that ‘‘when a fit parent . . . seeks to reinstate her
guardianship rights in her child, and the guardianship
in a third party was established with her consent, the
guardian bears the burden of proof to establish by clear
and convincing evidence that returning the child to the
parent would cause the child to suffer immediate and
substantial harm.’’ In making this assertion, the respon-
dent points to the trial court’s refusal to reinstate her
guardianship rights solely on the basis of the finding
that reinstatement was not in Zakai’s best interest.
To determine whether the respondent has satisfied
the third Golding prong as to this argument, we find it
helpful to review precedent concerning the legal stan-
dards applied in proceedings involving the termination
of parental rights and third-party visitation and custody
disputes. Before beginning this analysis, however, we
find it important to note that, despite underlying similar-
ities, the respondent’s claims in the present case are
still markedly different from cases involving the state
or other third-party actors attempting to infringe on the
fundamental rights of a fit, custodial parent in visitation
or custody proceedings. The respondent’s claims in the
present case involve the reinstatement of guardianship
rights where the respondent voluntarily consented to
guardianship in a third party, and where the respondent
and Zakai have not been an intact family for more than
four years.
In her brief, the respondent claims that the clear and
convincing evidence standard ‘‘is consistent with our
Supreme Court’s holdings in Roth and Fish [v. Fish,
285 Conn. 24, 939 A.2d 1040 (2008)], which h[e]ld that
a third party who seeks to infringe the fundamental
rights of a fit parent must prove immediate and substan-
tial harm to the child.’’ The respondent, however, fails
to acknowledge the distinction that our Supreme Court
has recognized between third-party custody and visita-
tion cases. In Roth, the grandmother and the aunt of two
minor children brought an action against the children’s
father seeking third-party visitation rights. Roth v. Wes-
ton, supra, 259 Conn. 204. Our Supreme Court ultimately
held ‘‘that a nonparent petitioning for visitation pursu-
ant to [General Statutes] § 46b-59 must prove the requi-
site relationship and harm . . . by clear and
convincing evidence.’’ Id., 232.
In Fish, which involved a third-party custody petition
pursuant to General Statutes § 46b-56b, our Supreme
Court held that ‘‘third party custody petitions challenge
the liberty interest of a parent in a way that is fundamen-
tally different from visitation petitions and that the judi-
cial gloss [our Supreme Court] placed on the visitation
statute in Roth should not be applied to § 46b-56b
because it does not give adequate consideration to the
welfare of the child, whose relationship with the parent
is at issue in a custody proceeding because of its alleg-
edly harmful effects. This is not the case in a visitation
proceeding, in which the child’s relationship with the
parent has not been placed in issue. The constitutional
question in a [third-party] custody proceeding therefore
must be framed and resolved in a manner that respects
parental rights but that also takes the child’s welfare
more directly into account.’’ Fish v. Fish, supra, 285
Conn. 55–56.
Furthermore, in Fish, our Supreme Court determined
that, contrary to Roth, the clear and convincing standard
was not constitutionally required under the test set forth
by the United States Supreme Court in Santosky v.
Kramer, supra, 455 U.S. 753. Fish v. Fish, supra, 285
Conn. 66–67. That test provided that ‘‘the Court must
examine a State’s chosen standard [for child custody
disputes] to determine whether it satisfies the constitu-
tional minimum of fundamental fairness.’’ (Internal quo-
tation marks omitted.) Santosky v. Kramer, supra, 756
n.8. Our Supreme Court, therefore, concluded that the
fair preponderance of the evidence standard satisfied
the constitutional minimum of fundamental fairness in
third-party custody disputes. See Fish v. Fish, supra,
66–67.
Additionally, both Roth and Fish involved situations
in which the rights of custodial parents were challenged
by third parties.10 In contrast, the respondent’s argu-
ment concerning the proper burden of proof in the
present case appears more analogous to the argument
in In re Juvenile Appeal (Anonymous), in which our
Supreme Court addressed the due process rights of
noncustodial parents seeking return of custody of a
child. In that case, the court laid out four factors to be
considered in determining whether the state has met
its burden of showing that a return of custody to a
natural parent will be detrimental to the child: ‘‘(1) the
length of [the child’s] stay with [the] foster parents; (2)
the nature of [the child’s] relationship to [the] foster
parents; (3) the degree of contact maintained with the
natural parent; and (4) the nature of [the child’s] rela-
tionship to [the] natural parent.’’ In re Juvenile Appeal
(Anonymous), supra, 177 Conn. 663. In considering
these factors, the court afforded great weight to psycho-
logical testimony from professionals in determining the
emotional state of the child. See id., 667. Our Supreme
Court ultimately determined that, ‘‘[a]lthough neither
the Juvenile Court nor the Superior Court spoke
expressly in terms of placing on the state the burden
of proving that revocation of commitment would not
be in the child’s best interests, we cannot say in view
of all the evidence that the findings and conclusions of
either court are inconsistent with a finding that the
state in fact met that burden.’’ Id., 667–68.
The court in the present case similarly determined
from the record that Zakai felt unsafe and insecure
when he was with the respondent for overnight visita-
tion and that, in the roughly four and one-half years he
had been in the petitioner’s care, the petitioner had
become a mother figure to him. The court also afforded
great weight to the testimony of Zakai’s first grade
teacher and therapist in determining Zakai’s mental and
emotional state after such overnight visitation.
In terms of establishing the proper burden of proof,
our statutes, Practice Book provisions, and Supreme
Court precedent recognize that proof by a fair prepon-
derance of the evidence is the applicable standard to
be applied in transfer of guardianship proceedings.11
The best interests of the child requirement is also set
forth in § 46b-129 (j) (3), Practice Book § 35a-20 (d),12
and § 45a-611 (b).13 Accordingly, the trial court correctly
applied the fair preponderance standard instead of the
clear and convincing evidence standard.14
Because the trial court applied the fair preponder-
ance of the evidence standard required by our statutes,
Practice Book provisions, and Supreme Court prece-
dent in determining Zakai’s best interest, we find that
the respondent has failed to prove any constitutional
violation in satisfaction of the third Golding prong.
Accordingly, we reject her constitutional claim.
II
The respondent’s nonconstitutional best interest
claim is that the court abused its discretion in conclud-
ing that her reinstatement as guardian was not in Zakai’s
best interest. Her argument that it was in Zakai’s best
interest to return to her care, custody, and guardianship
was based on the facts as she saw them. After our
careful review of the record, we conclude that the court
did not abuse its discretion in finding that the best
interest of Zakai was to remain with the petitioner. See
In re Diamond J., 121 Conn. App. 392, 397, 996 A.2d
296 (pursuant to Practice Book § 35a-16, ‘‘[m]otions to
modify dispositions are dispositional in nature based
on the prior adjudication, and the judicial authority
shall determine whether a modification is in the best
interests of the child or youth upon a fair preponderance
of the evidence . . . .’’), cert. denied, 297 Conn. 927,
998 A.2d 1193 (2010).
We are mindful of our limited standard of review.
‘‘To determine whether a custodial placement is in the
best interest of the child, the court uses its broad discre-
tion 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, and . . . we are not privileged
to usurp that authority or to substitute ourselves 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 which discloses a clear abuse of discretion can
warrant our interference. . . . In determining
whether there has been an abuse of discretion, the
ultimate issue is whether the court could reasonably
conclude as it did.’’ (Emphasis in original; internal quo-
tation marks omitted.) In re Patricia C., 93 Conn. App.
25, 32–33, 887 A.2d 929, cert. denied, 277 Conn. 931,
896 A.2d 101 (2006). Furthermore, we note that ‘‘[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. . . . We do not examine the record to
determine whether the trier of fact could have reached
a conclusion other than the one reached. . . . [O]n
review by this court every reasonable presumption is
made in favor of the trial court’s ruling.’’ (Emphasis in
original; internal quotation marks omitted.) Id., 36.
Because we have already found that the court prop-
erly considered evidence presented by the petitioner
and Zakai, through their attorney and guardian ad litem,
rebutting the presumption that reunification with the
respondent was in Zakai’s best interest; see part I of
this opinion; it follows that the court did not abuse its
discretion in finding that it was in Zakai’s best interest
to remain in the care, custody, and guardianship of
the petitioner.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** October 30, 2018, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The respondent’s counsel, in her argument to the trial court after the
hearing on the respondent’s motion to transfer guardianship, stated that
‘‘[t]he whole ordeal began when Zakai suffered a terrible beating at the
hands of [Montreal C.].’’
2
In late 2014, the respondent gave birth to her and Montreal C.’s daughter,
Zariah. The respondent did not cease contact with Montreal C. until March,
2016, approximately two years after he assaulted Zakai. A major impetus
behind the respondent severing contact with Montreal C. was her desire to
reunify with Zakai.
3
From April, 2014, to present, Zakai has been engaged in individual therapy
sessions as a result of his exhibited trauma like behaviors following the
February, 2014 assault.
4
Zakai has remained in the continuous care and custody of the petitioner
since early February, 2014, a period now in excess of four years. Conversely,
the respondent and Zakai have not constituted an intact family since early
February, 2014.
5
In early 2015, the respondent arranged, because of the criminal protective
order, for a professional visitation agency to supervise her visits with Zakai.
6
Practice Book § 60-5 provides in relevant part that ‘‘[an appellate] court
shall not be bound to consider a claim unless it was distinctly raised at the
trial or arose subsequent to the trial. The court may in the interests of justice
notice plain error not brought to the attention of the trial court.’’
7
The presumption referred to by the respondent is viewed by courts in
the context of the rights of the child and the duty of the state. Connecticut
balances the constitutional rights of parents against its duty and responsibil-
ity to protect and ensure the health, safety, welfare, and rights of children.
See, e.g., In re Stephen M., 109 Conn. App. 644, 646, 953 A.2d 668 (2008);
see also Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 378 n.11, 957 A.2d 821
(2008). Our Supreme Court has rejected a similar constitutional challenge
to § 46b-129 (b), a statute similar to § 45a-611. See In re Juvenile Appeal
(83-CD), 189 Conn. 276, 282–84, 293, 455 A.2d 1313 (1983). Our Supreme
Court also has recognized that the fair preponderance standard of proof is
constitutionally permissible in custody and neglect proceedings because
‘‘the child’s welfare and safety represents a strong countervailing interest
in relative equipoise with the liberty interest of the parent.’’ Fish v. Fish,
285 Conn. 24, 73–74, 939 A.2d 1040 (2008).
8
In determining what was in Zakai’s best interest, the court viewed the
facts of this case in the context of ‘‘the child’s interest in sustained growth,
development, well-being, and in the continuity and stability of [his] environ-
ment.’’ (Internal quotation marks omitted.) In re Brianna C., 98 Conn. App.
797, 804, 912 A.2d 505 (2006).
9
In oral argument before the trial court concerning the respondent’s
motion for reinstatement of guardianship, the respondent declared that the
fair preponderance of the evidence standard, as required by Practice Book
§ 35a-20 (d), applied to this matter. In its memorandum of decision, the
court determined that § 45a-611 (b) governed the proceeding. During oral
argument on appeal, the respondent agreed that § 45a-611 (b), Practice Book
§ 35a-20 (d), and § 46b-129 (n) all set forth the same requirement that there
is no further cause for the removal of parental guardianship, e.g., that the
parent has been rehabilitated, and that reinstatement is in the best interest
of the child. As such, the respondent appears to have conceded that the
fair preponderance of the evidence standard is required under § 45a-611
(b). Accordingly, the trial court properly utilized the fair preponderance of
the evidence standard when it determined that § 45a-611 (b) applied.
10
Our Supreme Court noted in Fish that its decision did ‘‘not address
situations in which the state seeks temporary custody of the child; see
General Statutes § 46b-129; or removal of the child from the custody of the
child’s parents. See General Statutes § 45a-610.’’ Fish v. Fish, supra, 285
Conn. 27 n.1.
11
General Statutes § 46b-129 (j) (3), for example, provides in relevant
part: ‘‘If the court determines that the commitment should be revoked and
the child’s . . . legal guardianship . . . should vest in someone other than
the respondent parent, parents or former guardian . . . there shall be a
rebuttable presumption that an award of legal guardianship . . . upon revo-
cation to . . . any caregiver or person or who is, pursuant to an order of
the court, the temporary custodian of the child . . . at the time of the
revocation . . . shall be in the best interests of the child . . . and that
such caregiver is a suitable and worthy person to assume legal guardianship
. . . upon revocation . . . . The presumption may be rebutted by a prepon-
derance of the evidence that an award of legal guardianship . . . to . . .
such caregiver would not be in the child’s . . . best interests and such
caregiver is not a suitable and worthy person. . . .’’
Our Supreme Court used the fair preponderance of the evidence standard
in reviewing a testamentary designation of a guardian: ‘‘We do conclude,
however, that the fact that the [testamentary guardians] suffered such
trauma, and that it affected them so significantly that they felt that they
could not assume guardianship of Joshua S., demonstrates, by a fair prepon-
derance of the evidence, that it would be damaging, injurious or harmful
and, therefore, detrimental to Joshua S. to be placed with the [testamentary
guardians], thereby rebutting the presumption favoring the testamentary
guardians.’’ In re Joshua S., 260 Conn. 182, 208, 796 A.2d 1141 (2002).
Additionally, Practice Book § 35a-12A (b) provides in pertinent part: ‘‘In
cases in which a motion for transfer of guardianship seeks to vest guardian-
ship of a child or youth in any relative who is the licensed foster parent for
such child or youth, or who is, pursuant to an order of the court, the
temporary custodian of the child or youth at the time of the motion, the
moving party has the burden of proof that the proposed guardian is suitable
and worthy and that transfer of guardianship is in the best interests of the
child. In such cases, there shall be a rebuttable presumption that the award
of legal guardianship to that relative shall be in the best interests of the
child or youth and that such relative is a suitable and worthy person to
assume legal guardianship. The presumption may be rebutted by a prepon-
derance of the evidence that an award of legal guardianship to such relative
would not be in the child’s or youth’s best interests and such relative is not
a suitable and worthy person. . . .’’
12
Practice Book § 35a-20 (d) provides in relevant part: ‘‘The party seeking
reinstatement of guardianship has the burden of proof to establish that
cause for transfer of guardianship to another person or agency no longer
exists. The judicial authority shall then determine if reinstatement of guard-
ianship is in the child’s or youth’s best interest.’’
13
General Statutes § 45a-611 (b) 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 guardian and reinstate
the parent as guardian of the person of the minor, if it determines that it
is in the best interests of the minor to do so. . . .’’
14
We also note that because our decision does not involve the permanent
termination of the respondent’s parental rights to Zakai, but rather is focused
on a determination of whether Zakai is ready to be reunited with the respon-
dent, a preponderance of the evidence standard is the more appropriate
burden of proof.