August 7, 2019

In re Leo L. – 191 Conn. App. 134 – July 2019

Denial of Motion to Transfer Guardianship

Intervenor, maternal grandfather, appealed from trial court judgment denying his motion to transfer guardianship of his grandchildren to himself and his fiancée, contending that the trial court erroneously determined that the transfer of guardianship would not be in the children’s best interests, and thus abused its discretion in denying his motion.

The children, Leo and Dakota, were adjudicated neglected and committed to DCF custody on August 4, 2016, and placed with nonrelative foster parents in whose care they’ve remained. In September 2017, DCF changed its plan from reunification with their mother to the termination of parental rights and adoption. Grandfather successfully moved to intervene in the case that same month; mother consented to the termination of parental rights in December. In January 2018, grandfather moved to transfer guardianship of the children to himself and his fiancée, pursuant to Practice Book Sec. 35a-12A, and after a four-day trial, the court denied the motion on the basis that the requested transfer of guardianship would not be in the children’s best interests.

In support of its ruling, the court found that the children had transitioned well into their foster home, and referred to their foster parents as “mom” and “dad.” The foster parents were seeking to adopt the children, and both children had expressed a desire for this to happen. Leo was enjoying school and “meeting grade level expectations.” Dakota had “greatly improved her academic skills,” as well as her interactions with others after engaging in therapy. The court emphasized the stability that the foster family had provided the children for over two years, and noted that while other arrangements might also provide a safe and loving environment, disrupting the current placement would introduce great instability into their lives. The court also noted that the grandfather had declined three prior opportunities to obtain guardianship of the children.

On appeal, grandfather claimed that the court abused its discretion in denying his motion by failing to consider certain evidence that would support the determination that placement with him would be in the children’s best interests, specifically, testimony from the fiancée and a DCF social worker about the foster father’s anger and violence towards the children, as well as the foster parents’ moving the children to Massachusetts during the trial, which violated DCF policy. The appeals court noted that there was conflicting evidence as to whether foster father had exhibited anger and violence towards the children: grandfather had presented evidence that foster father yelled and swore at the children in March 2018, and that fiancée had overheard Leo describe physical abuse by his foster father in both April and June 2018. DCF, however, presented evidence of its investigation into these allegations, including testimony that Leo had admitted to manufacturing the allegation of abuse by his foster father, and had eventually found the claims to be unsubstantiated.  There was further testimony from DCF that the children appeared comfortable around, played with, and did not fear him. Regarding the foster parents’ move to Massachusetts, the record showed that although the family had violated DCF policy and had been issued a regulatory violation, DCF had known in advance of the foster parents’ intention to move. While the appeals court acknowledged that some of this evidence weighed in favor of the grandfather’s motion, it would not second-guess the trial court, as they were within their discretion to weigh the evidence as they did.

Grandfather further argued that because the court failed to acknowledge the evidence of foster father’s alleged violence and the move to Massachusetts in its memorandum of decision, it had failed to consider that evidence in its analysis of the best interests of the children. The appeals court noted that the decision clearly stated that the decision to deny grandfather’s motion was made “in light of all the facts before it…”, and was therefore entitled to deference.  The judgment was thus affirmed, as the trial court hadn’t erred in determining that transfer of guardianship would not be in the children’s best interests, and therefore had not abused its discretion.