58 Conn. App. 159 | Conn. App. Ct. | 2000
The commissioner of children and families (commissioner) appeals from the judgment of the trial court granting custody and guardianship of the minor child, Shyina B., to the intervenors, her maternal uncle and aunt. On appeal, the commissioner claims that the court improperly applied the best interest of the child standard when it (1) imposed a legal presumption that Shyina’s placement with the intervenors was in her best interest, (2) sought to remedy the commissioner’s denial of the intervenors’ request to be licensed as foster parents of Shyina and (3) considered the race of the intervenors. We affirm the judgment of the trial court.
The following facts and procedural history are relevant to our disposition of this appeal. Shyina was born while her mother was awaiting trial for the murder of Shyina’s half-sister. Shyina’s mother subsequently was convicted of manslaughter in the first degree and sentenced to twenty years in prison. Because Shyina’s mother was incarcerated at the time of Shyina’s birth, the commissioner immediately obtained an order of temporary custody and placed Shyina with a foster family. At that time, the commissioner filed a neglect petition with respect to Shyina.
Shortly after the birth of Shyina, the intervenors learned of her birth and contacted the commissioner to declare themselves available as a placement resource for Shyina. The commissioner informed the intervenors that because the intervening aunt had a “record” with the department, placement with the intervenors would be problematic. The intervenors requested a copy of the record, but were told it was unavailable.
On January 16,1998, the court granted the intervenors visitation rights with respect to Shyina. On July 9,1998, the intervenors moved for custody and guardianship of Shyina. On August 18, 1998, the court adjudicated Shy-ina uncared for because she was homeless. The case was continued to September 16, 1998, when a disposi-tional hearing commenced. In a memorandum of decision dated June 9, 1999, the court recognized two available options with respect to the placement of Shy-ina: She could be committed to the custody of the commissioner, in which case she would remain in the care of the foster family, or her custody and guardianship could be granted to the intervenors. The court concluded that while both homes would be “fit, comfortable and safe settings for Shyina,” a fair preponderance of the evidence showed that granting custody and guardianship of her to the intervenors would be in the child’s best interest. This appeal followed. On July 20, 1999, in response to a motion by the commissioner, the court articulated its memorandum of decision. Additional facts will be set forth as necessary in the context of the commissioner’s claims.
I
The commissioner claims first that the court improperly applied the best interest of the child standard when it imposed a legal presumption that Shyina’s placement with the intervenors was in her best interest even though the relatives are not her parents, and that the commissioner, therefore, was required to rebut that presumption to persuade the court that Shyina should remain in the foster home. Because we conclude that
In support of this claim, the commissioner relies on portions of the court’s memorandum of decision. In its memorandum of decision, the court stated that the “factor which weighs most heavily in favor of the disposition of a transfer of custody and guardianship to the [intervenors] is their close and strong biological tie to Shyina, her family and her mother.” The court stated that “if at all possible, Shyina is entitled to be raised with her family, including her biological relatives” and, as expounded in its articulation, that “[o]n the other hand, depriving Shyina of [her right to live with] her biological relatives, when it has not been shown that placement with them would be detrimental to her, would certainly not be in her long-term best interests.” (Internal quotation marks omitted.)
Read in isolation, these statements appear to support the commissioner’s contention. Our review of the entire memorandum of decision, however, leads us to the contrary conclusion. At the outset, the court properly observed that in the search for an appropriate custodial placement, what is in the best interest of the child shall prevail; General Statutes § 46b-57; Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996 (1985); as shown by a fair preponderance of the evidence. In re Joshua Z., 26 Conn. App. 58, 63, 597 A.2d 842, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991).
The court found that the foster home provided “a safe and nurturing environment” for Shyina and, if that was the only choice, “it would be a wonderful selection.” The court also found that the intervenors’ home provided “a safe, nurturing and appropriate environment for Shyina.” These findings precede, in the memorandum of decision, the statements cited by the commissioner, which demonstrate that the court’s ini
That the court did not impose a presumption is further shown by its response to the commissioner’s motion for articulation. The court stated: “The relevant language . . . reads as follows: ‘On the other hand, depriving Shyina of her biological relatives, when it has not been shown that placement with them would be detrimental to her, would certainly not be in her long-term best interests.’ This portion of the decision must be read in the context of the decision as a whole. First, it is difficult to understand exactly what the state means by its claimed inquiry.
II
The commissioner claims next that the court improperly applied the best interest of the child standard when it sought to remedy the commissioner’s denial of the intervenors’ request to be licensed as foster parents and that such improper remedy, coupled with the alleged improper presumption previously discussed, undoubtedly affected the court’s decision to remove Shyina from the foster family and to place her with the interve-nors. As to the presumption, we concluded in part I of this opinion that it was not imposed by the court. As to the claim that the court “attempted to redress in the dispositive phase of [the] neglect proceeding what it perceived as [the commissioner’s] improper judgment refusing to license or certify the intervenors as foster parents,” we are not persuaded.
The following facts from the court’s memorandum of decision are undisputed. The intervenors came forward immediately upon learning of the premature birth of Shyina and expressed their desire to have her placed with them. Thereafter, they persisted in their endeavor. When they informed the commissioner of their intention, they were told that the aunt’s “record” would prohibit placement with them. The intervenors requested a copy of the record, and the commissioner responded that it was not then available. After the commissioner informed them that they could file a motion to intervene to get custody, the intervenors did so, appeared at every court hearing with their private attorney and made it consistently clear that they wanted to have Shyina placed with them.
Although the court found that the commissioner’s actions with respect to the intervenors were unfair, our review of the court’s memorandum of decision reveals that the court did not attempt to remedy that unfairness when it concluded that it was in Shyina’s best interest to be in the custody of the intervenors. Rather, the court’s use of the history was, in part, to illustrate that the record was unsubstantiated, thereby rebutting the commissioner’s position that Shyina should not be placed with the intervenors while supporting its own conclusion as to which placement would be in Shyina’s best interest. This is shown by the court’s statements that the “record” was “relevant to show why the com
Ill
The commissioner claims finally that the court improperly considered the race of the intervenors when it applied the best interest of the child standard. We disagree.
Rodolfo Jose Rosado, a court-appointed psychologist, testified that “from a cultural aspect, with African-American and African-Caribbean families, [they] have long used extended family supports where children are surrounded by a variety of relatives who love them and take care of them, and they can develop attachments
The commissioner argues that “family support systems” have “no legal relevance” to what is in Shyina’s best interest. As we set forth in part II of this opinion, Shyina’s best interest includes her interest in “sustained growth, development, well-being, and continuity and stability of [her] environment.” Id. We conclude that the extent to which the intervenors’ family might contribute to the care of Shyina is relevant to those factors
The judgment is affirmed.
In this opinion the other judges concurred.
The commissioner ultimately produced the “record” pursuant to a court order.
The motion for articulation in relevant part requested the court to state the “[l]egal basis for applying a standard of whether a change in placement would be ‘detrimental’ to Shyina.”