In re Elysa D.

974 A.2d 834

116 Conn.App. 254

In re ELYSA D. et al.^*

No. 29555.

Appellate Court of Connecticut.

Argued April 17, 2009.

Decided August 4, 2009.

David V. DeRosa, for the appellant (respondent father).

Karen J. Greenberg, Stafford, for the appellee (intervening maternal grandmother).

DiPENTIMA, LAVINE and HENNESSY, Js.

LAVINE, J.

The respondent father (father) appeals from the judgment of the trial court transferring guardianship of his three minor children to their maternal grandmother,¹ claiming that the trial court, T. Santos J., (1) violated his constitutional right to the effective assistance of counsel in a proceeding affecting his parental rights and (2) improperly transferred custody of the children from the respondent mother (mother) to their maternal grandmother.² We affirm the judgment of the trial court.

On January 24, 2007, pursuant to General Statutes § 46b-120(9), the petitioner, the commissioner of children and families, filed neglect petitions as to both the mother and father for each of their three children. The petitions alleged that the children were neglected in that they were being denied proper care and attention, physically, educationally, emotionally or morally, and that they were being permitted to live under conditions, circumstances or associations injurious to their well-being. Moreover, the petitioner alleged that the parents were unable or unwilling to provide a safe, stable and nurturing environment for the children; the father's parental rights in a half-brother of the children previously had been terminated; the mother had prior involvement with the department of children and families (department), as had the father; the parents have unresolved substance abuse issues that negatively affected their ability to provide appropriate care for the children; the father has unresolved mental health issues that negatively affect his ability to provide appropriate care for the children; the parents have failed to provide appropriate supervision for the children; the father has unresolved anger management issues that negatively affect his ability to provide appropriate care for the children; and the children have been exposed to domestic violence in the home and to the father's substance abuse. On April 27, 2007, the court, Graziani, J., adjudicated the children neglected and awarded their sole custody to the mother under an order of protective supervision.

On September 20, 2007, the petitioner filed a motion to modify the disposition from that of protective supervision to an order of commitment. See General Statutes § 46b-129. The petitioner alleged that the mother had let a restraining order against the father lapse and had allowed the father to stay in her home with the children for three consecutive days. Concurrently, the petitioner also filed a motion asking that the father be ordered to refrain from entering the mother's home, that his visits with the children be supervised and that he engage substance abuse and mental health services pursuant to the specific steps that were ordered. In addition, the petitioner filed a motion to extend the protective supervision order with respect to the mother for an additional three months.

On October 12, 2007, the mother filed a motion to transfer guardianship of the children to their maternal grandmother, whom the mother deemed a suitable and worthy guardian pursuant to § 46b-129(d). The mother also filed a motion for permission to relocate outside of Connecticut. On that date, the maternal grandmother, who had intervened in the matter, petitioned the court to grant her guardianship of the children and to remove them to California, where she and the children's maternal grandfather reside. The father objected to removing the children from the state and to transferring guardianship of the children to the maternal grandmother. The court granted permission for the children to travel to California for an extended vacation in November, 2007.

Trial on the motion to transfer guardianship to the maternal grandmother was held on December 7 and 11 2007.³ On December 11, 2007, counsel for the mother, Trudy Condio; counsel for the maternal grandmother, Karen J. Greenberg; and counsel for the children, Steven I. Melocowsky; spoke in favor of transferring the children's guardianship to the maternal grandmother. Counsel for the petitioner, assistant attorney general Jason M. Lobo, was unwilling to support the transfer of guardianship or to withdraw the motion for disposition without a family study having been completed in California.⁴ The father's counsel, Pamela J. Cabrera, argued against the transfer of guardianship.

On the basis of the evidence presented, the court found that the maternal grandmother was a suitable and worthy guardian. Although it had received a great deal of evidence to warrant transferring the children's guardianship to the maternal grandmother, the court was not ready to do so given the competing interests of the father, the paternal grandparents and the children. The court was open to the father's becoming a placement for the children, if the department made such a recommendation. The court reasoned that if the mother were to live with the children and the maternal grandmother was guardian, the father and his family would be deprived of seeing the children on a frequent basis, as they had in the past. The court therefore extended the children's visitation in California for sixty days to give the father time to meet the specific steps he had signed on September 8, 2006. The court found that the father had not made significant progress toward accomplishing the specific steps, had not provided financial support for the children and remained under an order of supervised visitation. The court gave the father sixty days to demonstrate progress toward satisfying the specific steps. Such progress was necessary to support a decision to deny the motion to transfer guardianship. The parties were ordered to return to court on February 22, 2008.

Subsequently, it came to light that to retain jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act; see General Statutes § 46b-115 et seq.; the court had to rule on the motion to transfer guardianship by February 9, 2008. The parties appeared in court on January 11, 2008, and agreed to continue the trial on January 29, 2008. When the parties and counsel appeared in court on January 29, 2008, Lobo stated that the department had received the California family study and that the petitioner was now joining the mother's motion to transfer guardianship of the children to the maternal grandmother.⁵ All parties, except the father, were in favor of transferring the children's guardianship.

On January 29, 2008, the father was represented by new counsel, Matthew Collins. Collins represented to the court that he recently had been appointed to represent the father, was unprepared to do so on that day and asked for a continuance. The court explained to Collins the time constraints it faced and ordered overnight copies of the transcripts of the prior proceedings for Collins to review. The matter was continued until February 1, 2008.

On February 1, 2008, Collins represented to the court that he had subpoenaed the father's therapist, Pamela Neary, a licensed marriage and family therapist, to testify. Neary was, however, unable to appear due to prior commitments. In lieu of Neary's testimony, Collins placed into evidence a letter she had written on the father's behalf.⁶ Collins informed the court that he had just received copies of the transcript of the prior proceedings and needed time to review them before summing up. The court agreed to continue the matter and to hold closing arguments on February 4, 2008. Thereafter, all counsel, except Collins, argued that it was in the best interests of the children to transfer their guardianship to the maternal grandmother. Collins questioned why the father was not given until February 22, 2008, to demonstrate the progress he was making toward the specific steps, as originally planned. He noted that the father responded quickly when the court stated in December, 2007, that it wanted to see what progress he could make toward achieving the specific steps.⁷ Collins also questioned the stability of the California placement as the maternal grandparents apparently have no family in or prior connection with that state. He also argued that he did not think that the family study completed in California "is really that strong" because it was completed by someone who did not know the family well. Moreover, the mother was not engaged in any program for the treatment of substance abuse.

The parties appeared in court again on February 4, 2008. The court, previously having found the maternal grandmother suitable and worthy, granted the motion to transfer guardianship of the children to her. Prior to doing so, the court made the following observations with respect to the father. The father was not remiss in his love for his children, but he was remiss in "stepping up to the plate." Initially, the father had told the department that he did not want help when services were offered, and he refused to inform the department of his address. It only was in the eleventh hour that the father engaged the services of a therapist. In his therapy, he primarily was concerned about the loss of his children. The therapist was of the opinion that the father did not understand what it means to rear children who were the age of his children. The court stated that it had to consider the best interests of the children in making its decision but acknowledged that placement in California was not ideal. The father, however, had no place for the children to live. He had not addressed his mental health and substance abuse issues until recently, which was too late. The father filed an appeal.

I

The father first claims that the court denied him the constitutional due process...