237 Conn. 233 (1996) | Cited 8 times | Supreme Court of Connecticut | June 4, 1996

The dispositive issue in these consolidated cases is whether the trialcourt properly concluded that a parent's record of intentional nonsupport ofhis family demonstrated, by clear and convincing evidence, a failure to meetparental responsibilities within the meaning of General Statutes §45a-6101 and warranted his removal as the guardian of his children.

[237 Conn. 235]

     After the death of the mother of two minor children, the plaintiff, GloriaCastillo, the children's maternal aunt, filed petitions in the Probate Courtfor the removal of the children's father, the defendant, Johnnie Garrett, astheir guardian and for the appointment of herself as their guardian in hisstead. The Probate Court granted the petitions and the defendant thereafterappealed to the trial court. After a trial de novo pursuant to GeneralStatutes § 45a-186,2 the trial court rendered a judgment granting thepetitions for the defendant's removal as guardian of his children.3The defendant appealed from the judgment of the trial court to theAppellate Court, and we transferred the appeal to this court pursuant toPractice Book § 4023 and General Statutes § 51-199 (c). We affirm thejudgment of the trial court.

The legislature has set the standard that governs a petition for theremoval of a surviving parent as the guardian of his or her children.Section 45a-610 authorizes the removal of a parent as guardian only if, byclear and convincing evidence, the court finds the existence of one or moreof four statutory grounds. See footnote 1. In these cases, each petitionfor removal alleged that "[t]he minor child has been abandoned by the parent. . . in the sense that the parent . . . has failed to maintain a reasonabledegree of interest, concern or responsibility for the minor's welfare." SeeGeneral

[237 Conn. 236]

     Statutes § 45a-610(2). Each petition further alleged that "[t]he minorchild has been denied the care, guidance or control necessary for physical,educational, moral or emotional well-being, as a result of acts of parental. . . omission, as defined by law," which law requires, in addition, ashowing that "the parent cannot exercise, or should not in the bestinterests of the minor child be permitted to exercise, parental rights andduties at this time . . . ." General Statutes § 45a-610(3).

With respect to each petition, the trial court determined that thealleged statutory grounds for removal had been proven by clear andconvincing evidence. The trial court's central finding of fact was thatthe defendant "could have and should have supported his children . . .[but] clearly did not do so." Ruling on the allegation of abandonmentpursuant to § 45a-610(2), the trial court held that the defendant'ssustained and intentional failure to support his children constituted afailure "to maintain a reasonable degree of . . . responsibility for[their] . . . welfare." (Internal quotation marks omitted.) Ruling on theallegation of denial of care pursuant to § 45a-610(3), the trial courtheld that the defendant's sustained and intentional failure to support hischildren constituted an act of parental omission that resulted in thedenial to the children of "the care necessary for their physicalwell-being" and demonstrated that the defendant "was not . . . ofsufficient maturity and responsibility to assume the burdens and duties ofa parent and guardian."

In his appeal to this court, the defendant challenges, for tworeasons, the validity of his removal as guardian. First, the defendantargues that the trial court improperly failed to give sufficient weight tothe principle of family integrity. That principle, which is reflected inour custody statute; General Statutes § 46b-56b;4 presumes

[237 Conn. 237]

     that it is in the best interests of children to remain with their biologicalparent rather than with another member of their family. The defendantacknowledges that the trial court explicitly referred to and consideredthis principle, but maintains that the court improperly subsumed it withinits analysis of § 45a-610. Second, the defendant argues that the trialcourt improperly determined that the record before it had established, byclear and convincing evidence, that his removal as guardian was warranted onthe ground of abandonment as that ground is defined in § 45a-610(2).5Significantly, however, he does not challenge the trial court's alternatedetermination that his removal as guardian was warranted because the recordalso established, by clear and convincing evidence, that he had failed toprovide the care necessary for the physical well-being of his children. SeeGeneral Statutes § 45a-610(3).

Our examination of the record on this appeal, and the briefs and thearguments of the parties, persuades us that the judgment of the trial courtshould be affirmed. In its thoughtful and comprehensive memorandum ofdecision, the trial court properly analyzed the applicable provisions of §45a-610 and properly applied the facts of record in concluding that therequirements of the statute had been met and that the defendant should beremoved as guardian of his children. Garrett's Appeal From Probate,44 Conn. Sup. 169, ___ A.2d ___ (1994). Because the trial court'smemorandum

[237 Conn. 238]

     of decision fully addresses the arguments raised in the present appeal, weadopt the trial court's well reasoned decision as a statement of the factsand the applicable law on these issues. It would serve no useful purposefor us to repeat the discussion therein contained. See Val-Pak of CentralConnecticut North, Inc. v. Commissioner of Revenue Services, 235 Conn. 737,740, 669 A.2d 1211 (1996); Greater Bridgeport Transit District v.State Board of Labor Relations, 232 Conn. 57, 64, 653 A.2d 151 (1995); VanDyck Printing Co. v. DiNicola, 231 Conn. 272, 273-74, 648 A.2d 877 (1994).

The judgment is affirmed.

1. General Statutes § 45a-610 provides: "Removal of parent as guardian.If the court of probate finds that notice has been given or a waiver hasbeen filed, as provided in section 45a-609, it may remove a parent asguardian, if the court finds by clear and convincing evidence one of thefollowing: (1) The parent consents to his or her removal as guardian; or(2) the minor child has been abandoned by the parent in the sense that theparent has failed to maintain a reasonable degree of interest, concern orresponsibility for the minor's welfare; or (3) the minor child has beendenied the care, guidance or control necessary for his or her physical,educational, moral or emotional well-being, as a result of acts of parentalcommission or omission, whether the acts are the result of the physical ormental incapability of the parent or conditions attributable to parentalhabits, misconduct or neglect, and the parental acts or deficiencies supportthe conclusion that the parent cannot exercise, or should not in the bestinterests of the minor child be permitted to exercise, parental rights andduties at this time; or (4) the minor child has had physical injury orinjuries inflicted upon him by a person responsible for such child'shealth, welfare or care, or by a person given access to such child by suchresponsible person, other than by accidental means, or has injuries whichare at variance with the history given of them or is in a condition whichis the result of maltreatment such as, but not limited to, malnutrition,sexual molestation, deprivation of necessities, emotional maltreatment orcruel punishment. If, after removal of a parent as guardian under thissection, the child has no guardian of his person, such a guardian may beappointed under the provisions of section 45a-616."

2. General Statutes § 45a-186 provides in relevant part: "Appeals fromprobate. Any person aggrieved by any order, denial or decree of a court ofprobate in any matter, unless otherwise specially provided by law, mayappeal therefrom to the superior court for the judicial district in whichsuch court of probate is held . . . . Appeals from any decision renderedin any case after a record is made under sections 51-72 and 51-73 shall beon the record and shall not be a trial de novo." In this case, there was no record of the proceedings in the ProbateCourt.

3. The trial court appointed the plaintiff as temporary guardian of thechildren pending the completion of further proceedings pursuant to GeneralStatutes §§ 45a-610, 45a-616 and 45a-617. The court also ordered that thedefendant be afforded reasonable visitation with his children. See GeneralStatutes § 45a-612.

4. General Statutes § 46b-56b provides: "Presumption re best interestof child to be in custody of parent. In any dispute as to the custody of aminor child involving a parent and a nonparent, there shall be apresumption that it is in the best interest of the child to be in thecustody of the parent, which presumption may be rebutted by showing that itwould be detrimental to the child to permit the parent to have custody."

5. In conjunction with this claim, the defendant also contends that hisremoval as guardian was premature because a contemplated court-orderedfamily relations investigation was never completed. As the plaintiffpoints out, however, and the defendant does not deny, the trial

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