Opinion
No. H12-CP-06-010715-A
September 12, 2011
MEMORANDUM OF DECISION ON MOTION FOR REVOCATION
This is a hearing, on remand from the Appellate Court, subsequent to the Connecticut Supreme Court's reversal of the Appellate Court's decision affirming the granting of the commissioner of the department of Children and Families' (the commissioner) motion for revocation of Shanaira C.'s commitment by the trial court. (Wollenberg, J.) See In re Shanaira C., 297 Conn. 737, 1 A.3d 5 (2010). The successful appellant was the intervenor, Stephanie E., the former girlfriend of the respondent father, Joel C.
The Appellate Court decision is In re Shanaira C., 105 Conn.App. 713, 940 A.2d 817 (2008).
Shanaira was born on November 14, 1999 and is now 11 years old. She has been residing with the respondent mother, Maria R., since she was seven. As noted in the Supreme Court's decision, "Many of the relevant facts and procedural history, which are undisputed, are set forth in the opinion of the Appellate Court." Id., 740.
"On March 28, 2006, the commissioner filed a neglect petition and motion for an order of temporary custody of Shanaira on the basis of allegations of medical and educational neglect, as well as domestic violence and drug abuse by the [respondent] father. The court granted that order. At that time, Shanaira had been residing with her father and his girlfriend, the intervenor. On April 3, 2006, the intervenor filed a motion to intervene, which was granted by the court [A. Santos, J.] on May 9, 2006. On July 6, 2006, the intervenor filed a motion to transfer guardianship of Shanaria to herself, and, on September 18, 2006, she filed a motion for visitation. The court consolidated the trial of these motions with the trial of the neglect petition."
"After three days of trial, on October 17, 2006, the court [Wollenberg, J.] adjudicated Shanaira neglected. The court also denied the intervenor's motions for guardianship and visitation. On November 2, 2006, the court committed Shanaira to the custody of the commissioner. The court continued the matter to December 15, 2006. In doing so, the court expressed its intention to send Shanaira to Florida to live with the respondent mother."
"On December 12, 2006, the commissioner filed a motion to revoke the commitment of Shanaira on the ground that reunification with the respondent mother, in Florida, was in the child's best interest. The motion to revoke was heard on December 15, 2006, and all parties were present. The commissioner submitted to the court a status report, a report from Shanaira's therapist and a report from the [respondent] mother's therapist. The intervenor opposed the motion to revoke and informed the court that she would be calling witnesses, including her [own] mother and Shanaira's aunt, who was also [Shanaira's] foster mother . . . Although [t]he court allowed testimony from Shanaira's aunt and teacher [it essentially did not allow the intervenor to call or question those or any other witnesses, including the intervenor's mother, who never testified. Furthermore, the court itself examined the witnesses who did testify with little or no input or questioning from the parties]. On the basis of the reports submitted by the commissioner, the testimony and the statements of counsel, including that of the intervenor, the court found that revocation of the commitment was in Shanaira's best interest and granted sole custody of Shanaira to the respondent mother." (Citation omitted; internal quotation marks omitted.) In re Shanaira C., supra, 297 Conn. 740-42.
The intervenor appealed to the Appellate Court from the trial court's judgment, claiming, inter alia, that as a proper party to the action, her due process rights were violated when the court failed to hold a full evidentiary hearing on the motion to revoke and precluded her from calling and cross-examining witnesses and otherwise participating meaningfully in the hearing. The Appellate Court, with one judge dissenting, affirmed the 2006 judgment of the trial court in 2008. See Id., 742-43.
During the hearing before Judge Wollenberg on December 15, 2006, the intervenor advised the court that she had evidence to show that services needed to be in place in Florida, that Shanaira's behaviors were "deteriorating" and her academic performance had declined terribly. Id., 742. At the time the intervenor appealed from the entry of the trial court judgment revoking the commitment in 2006, none of the parties, including the intervenor, moved to stay the trial court's judgment. The intervenor did not appeal from the trial court's denial of her motion for visitation or transfer of Shanaira's guardianship to her. Accordingly, while the appeal was pending, there were no continuing orders directed at the department, mother or father. There were no visitation orders in place for Stephanie E. The trial court's revocation of commitment included a transfer of sole custody of Shanaira to her mother, without protective supervision. There were no specific steps issued to either mother or father at the conclusion of this dispositional hearing. No further review hearings were set. As a result of its judgment, the trial court no longer had a pending child protection matter. It effectively relinquished all jurisdiction over Shanaira's care and custody after returning her to her mother's care. According to Feliciano, the department closed its case a few months later.
Section 66-11(b) of the Rules of Appellate Procedure provides, in pertinent part, "[T]here shall be no automatic stay in . . . juvenile matters brought pursuant to Chapters 26 through 35a."
Both appellate decisions find that Judge Wollenberg only awarded the mother sole custody, not sole guardianship. Although the court memorandum of hearing prepared at the time the court issued its orders on December 15, 2006 indicates the court granted mother sole custody and guardianship, the official judgment form signed by Judge Wollenberg indicates only an award of sole custody and the box that indicates an award of guardianship is not checked.
In 2010, the Supreme Court issued its opinion reversing the Appellate Court and upholding the intervenor's claim that the hearing conducted by the trial court violated General Statutes § 46b-129(m), which the Supreme Court held implicitly mandates a full evidentiary hearing on a motion for revocation of commitment, and ruling that the intervenor did not receive the revocation hearing to which she was entitled. The Supreme Court reversed the judgment of the Appellate Court and remanded the case to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court for a new dispositional hearing.
However, the Supreme Court, noting the time it took for the case to plod through the appeals process, stated: ". . . [M]ore than three and one-half years have elapsed since Shanaira began residing with her mother in December 2006. There is no doubt that much has happened in Shanaira's life over that period of time, and, consequently, what is in Shanaira's best interest will depend largely on what has occurred since her move to Florida to live with her mother. Accordingly . . . the focus of the new dispositional hearing must be on Shanaira's status and her best interest at the time of that hearing." Id., 763.
In spite of this clear directive from the Supreme Court, the assistant attorney general, on behalf of the commissioner, filed a second motion for revocation of commitment on August 16, 2011, out of an abundance of caution to avoid any argument that evidence subsequent to the date of the original hearing on December 15, 2006, should be precluded.
Upon remand from the Appellate Court in October 2010, this court endeavored to rehear the motion to revoke on several dates. These efforts were thwarted by the inability of counsel for the intervenor, the child, the mother and the father to locate their respective clients and ascertain their positions, as it had been years since counsel had last spoken with them. Counsel for the father, Joel C., was permitted to withdraw after making diligent efforts to locate him. Father's whereabouts are unknown and he did not appear for the hearing. After all other counsel, assisted by the department, were able to make appropriate contact with their clients, the motion was set for hearing on August 26, 2011. The intervenor was present with counsel when this date was established on June 3, 2011.
In fact, on June 3, 2006, after the court commenced evidence on the motion, the court declared a mistrial when counsel for the child and the mother advised the court they still had not managed to speak to their clients.
At the August 26, 2011 hearing, all parties appeared through counsel. Respondent mother and Shanaira, who continue to reside in Florida, and the intervenor, Stephanie E., who resides in Connecticut, were not physically present. Noting the amount of time that had elapsed since the 2006 judgment, four years and eight months, the court determined it would proceed. Respondent mother and the child had been offered the opportunity to participate by telephone or videoconference and chose not to, and the intervenor, who was fully aware of the date and time of the August 26 hearing, had not contacted her attorney or the court to explain her failure to attend.
General Statutes § 46b-129(m) provides that "[the commissioner, a parent or the child's attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commitment of such child or youth. No such motion shall be filed more often than once every six months."
Practice Book (2011) § 35a-14A provides in relevant part: "Whether to revoke the commitment is a dispositional question, based on the prior adjudication, and the judicial authority shall determine whether to revoke the commitment upon a fair preponderance of the evidence. The party seeking revocation of commitment has the burden of proof that no cause for commitment exists. If the burden is met, the party opposing the revocation has the burden of proof that revocation would not be in the best interests of the child."
Formerly Practice Book (2006) § 35a-14(c).
The commissioner, (the party vested with Shanaira's guardianship), the mother and the child are all in favor of revocation. Only the intervenor opposes it. Both the Supreme and Appellate courts recognized the intervenor's standing to oppose the commissioner's motion to revoke Shanaira's commitment as against Shanaira's best interest, even though she is not currently vested with the guardianship of Shanaira. See In re Shanaira C., supra, 297 Conn. 644. The Supreme Court stated: ". . . the denial of the intervenor's motions to transfer guardianship and for visitation had no effect on the intervenor's ability to speak to Shanaira's best interest with respect to the revocation of Shanaira's commitment to the custody of the commissioner and, ultimately, the transfer of custody to the respondent mother." Id., 753.
Practice Book § 35a-14A allocates burdens of proof with respect to whether cause for commitment exists and whether revocation is in the best interest of the child. "Specifically, once the party seeking revocation has satisfied its burden of proving that no cause for commitment exists, the party opposing revocation bears the burden of proving that revocation would not be in the best interest of the child . . ." (Citation omitted.) In re Shanaira C., supra, 297 Conn. 760. A natural parent is "entitled to the presumption, absent a continuing cause for commitment, that revocation will be in the child's best interests unless . . . [proven] otherwise." In re Cameron C., 103 Conn.App. 746, 756, 930 A.2d 836 (2007).
Therefore, in this instance, the party moving for revocation, the commissioner, bears the burden of proving that no cause for commitment exists. If the commissioner meets that burden, the intervenor, the sole party opposing the motion, has the burden of proving that the revocation would not be in Shanaira's best interests.
"[T]he determination of a child's best interest is generally a fact intensive inquiry. [T]he best interest standard . . . is inherently flexible and fact specific and gives the court discretion to consider all of the different and individualized factors that might affect a specific child's best interest." (Citations omitted; internal quotation marks omitted.) In re Shanaira C., supra, 297 Conn. 759-60.
At the August 26 hearing, the commissioner introduced the testimony of one witness, investigative social worker Janet Feliciano, who had previously been the treatment worker assigned to Shanaira's case in 2006, as well as a study prepared by Feliciano in support of the motion for revocation. The child's attorney submitted a report which was admitted into evidence without objection. The child's attorney introduced no testimony. The mother and the intervenor introduced no testimony or exhibits.
Certain hearsay statement in this study were redacted pursuant to objections posed by the intervenor.
During the hearing, the court informed the parties it intended to take judicial notice of the Supreme Court's decision in this case, Judge Wollenberg's decision adjudicating neglect on October 17, 2006, all the court memoranda of hearing, the nature and date of all filings in the case, and the lack of the filing of any motion to stay, pending appeal, Judge Wollenberg's December 2006 decision revoking the commitment.
Based on the credible evidence submitted at trial and items judicially noticed, the court finds the following facts:
In February 2006 a report was made to the department by Stephanie E., the intervenor, who was then father's live-in girlfriend. Physical and educational neglect of Shanaira by Joel C., her father was substantiated. On March 28, 2006, the department filed a neglect petition on behalf of Shanaira and alleged three grounds for neglect claiming Shanaira was abandoned, denied proper care physically, educationally, emotionally and morally, and permitted to live under conditions, association and circumstances injurious to her well-being. The department also sought an order of temporary custody, which was signed ex parte on March 28, 2006. On April 7, 2006, the order of temporary custody was sustained by agreement at the preliminary 10-day hearing. Both mother and father appeared and were appointed counsel. On that date, as required by General Statutes § 46b-129(c)(6), the court issued preliminary specific steps directed to mother and father and the department as to what was expected of all parties in order to promote reunification. The court memoranda also notes that at that time, Shanaira was placed in the home of the intervenor's mother, not the intervenor. Shortly thereafter, Shanaira was placed with her paternal aunt.
Stephanie E. was permitted to intervene on May 9, 2006. The basis for the granting of that motion was "due to the exceptionally close relationship that the intervenor had maintained with Shanaira for at least the preceding two years. The evidence established, in particular, that Shanaria referred to the intervenor as "[m]ommy," that the intervenor had cared for Shanaira over that two-year period and that Shanaira had expressed a desire to live with the intervenor . . ." In re Shanaira C., supra, 297 Conn. 737. However, the intervenor never served as a placement resource for Shanaira subsequent to the filing of the neglect petition.
On September 18, 2006, a contested trial commenced on the neglect petition, which was consolidated with mother's motion to vacate the order of temporary custody and the intervenor's motion for guardianship and visitation. At the conclusion of the third day of trial on October 17, 2006, the trial court (Wollenberg, J.) adjudicated Shanaira neglected on the basis of all three grounds alleged and directed the parties to present evidence on the proper disposition of the neglect petition and in particular, on the issue of whether Shanaira should be placed with her mother in Florida. Judge Wollenberg found Shanaira had been neglected as follows: "From the information at hand, the court will find that neglect lies as recorded as reported." The cause of commitment can be summarized by the allegations of the neglect petition, dated March 28, 2006, in which the commissioner alleged that father, mother and the intervenor had engaged in domestic violence, and that father had violated a protective order, abused illegal substances, neglected Shanaira's medical and educational needs and left her in the care of the intervenor. It was alleged that mother had left for Florida, was not actively involved in Shanaira's life and had not seen Shanaira in two years. Judge Wollenberg then denied the intervenor's motion to transfer guardianship and her motion for visitation with Shanaira.
On remand, this court is only ordered to rehear the motion for revocation, which is dispositional in nature, not the adjudicatory or dispositional phases of the neglect trial, so Judge Wollenberg's neglect adjudication and November 13, 2006 decision to commit Shanaira stand.
T., October 17, 2006, at 183.
On the next trial date, November 2, 2006, the court heard testimony from Janet Feliciano, a social worker employed by the department, who testified about a report that she had prepared concerning the respondent mother and her observations of Shanaira's interaction with her mother. Feliciano indicated that it was the position of the department that sole custody and guardianship of Shanaira be transferred to the respondent mother, and that her commitment to the custody of the department was no longer necessary. Following the testimony of Feliciano, the trial court declined to transfer sole custody to the mother and instead, committed Shanaira to the custody of the department. The court explained, however, that it was likely to transfer custody of Shanaria to the respondent mother in the relatively near future but that Shanaira would remain in Connecticut until at least the next hearing date. The court indicated that proceeding in that manner would be best for Shanaira and would provide an opportunity for the court to assure itself that Shanaira was ready for the move to Florida. At that point, the court ordered counseling and two visits between Shanaira and her mother. It indicated its commitment order was temporary because a few months were needed to transition the child to the mother's home in Florida. It established a target date of Christmas, 2006 for Shanaria to be reunified with her mother in Florida. (See Memorandum of Hearing dated November 13, 2006).
At the next hearing, on December 15, 2006, the intervenor sought to be heard on the revocation of the commitment. Despite the intervenor's claim that is was not in Shanaria's best interests to "just send the child down there" without "some oversight of what will happen in Florida," the court granted the motion to revoke and awarded sole custody to mother. See In re Shanaira C., supra, 297 Conn. 757. The court also denied the child's attorney's motion for an interstate compact study regarding the mother in Florida. There were no further hearings set at that time, although there were several subsequent hearings in the first part of 2007 to address issues being raised as a result of the intervenor's appeal. In fact, Shanaira's status was not revisited by the trial court until it was directed by the Appellate Court in October 2010 to conduct a new hearing on the motion for revocation. As noted previously, as far as the court and the department were concerned, this became a closed protective services case shortly after the December 15, 2006 decision.
Since being returned to her mother's care in December 2006, Shanaira has resided with her biological mother in various locations in Florida.
After the Supreme Court reversed the decision of the Appellate court and ordered a new dispositional hearing on the commissioner's motion for revocation, Janet Feliciano, a department social worker, visited Shanaira in Orlando on September 1, 2010 in order to be able to provide the court with an update on how Shanaira was doing in her mother's care. Feliciano's observations as to what her investigation revealed in September 2010 are contained in the social study submitted as State's Exhibit A.
In September 2010, mother was residing in a quiet residential neighborhood in a rented, single-family home. The lease was for only eight months, from August 2010 to March 2011. Prior to renting this home, mother had been residing in an apartment complex in the same city. Mother's income consisted of full-time employment at a Taco Bell, S.S.I. benefits for one of her other daughters, Nechma, who is disabled, and food stamps. The home was clean and Feliciano identified no safety concerns. There were three bedrooms, one of which Shanaira shared with her sister. There was adequate food in the home. The family also had a pet Labrador retriever.
In 2010, Shanaira was in the 5th grade but still reading below grade level and receiving special instruction. Feliciano spoke with Shanaira's former teacher who reported no concerns. The teacher had been permitted to visit the home for extra support for Shanaira and mother was reported as appropriate. In January 2010 Shanaria was a recipient of an award for perfect attendance at her elementary school. Feliciano also visited Shanaira's pediatrician's office, the Winter Garden Children's Health Center, and spoke with a nurse who informed her that Shanaira was up to date medically.
When Shanaira was reunified with her mother, mother was in therapy, which she completed. Shanaira received counseling with a therapist at the Center for Counseling and Consulting in Florida from January 9, 2007 until September 26, 2009, when she was successfully discharged. She had been diagnosed with generalized anxiety disorder. Upon discharge, no follow up treatment had been recommended for her other than that she return to counseling in the event it became necessary.
Feliciano observed Shanaira to be doing well in the fall of 2010. She seemed adjusted to her family and expressed to the worker that her mother is a "really good mommy." Shanaira indicated she had not had contact with anyone in Connecticut since being placed in her mother's care three and a half years earlier other than her father, who visited her at her mother's home in 2007.
In the fall of 2010, Feliciano concluded that Shanaira was thriving and should continue to remain in her mother's care.
Due to the reversal of the trial court's revocation order, Shanaira has technically remained committed to the custody and care of the department since August 2010. If the department had any serious concerns during the past year, it had the authority to remove Shanaira from mother's home immediately.
In early August 2011, Feliciano again traveled to Florida to investigate Shanaira's status. Feliciano again visited Shanaira and her mother a little over a month ago. Prior to her visit, Feliciano was able to verify that Shanaira is still up to date medically. She has been promoted to middle school and will begin the 6th grade this school year. Mother was making efforts to have Shanaira attend the same school as her sister, but it might not be possible.
Feliciano also requested updated information from the Florida Department of Children and Families, which is that state's child protection agency. Feliciano learned that mother had a recent referral in February 2011, similar to other past referrals made by anonymous callers, complaining about her care of her disabled daughter, Nechma. After a short investigation, the Florida investigator concluded that there was no evidence to support neglect or any other allegation. There were no concerns for environmental hazards. Nechma was clean and there was adequate food in the home. The Florida investigator indicated in his report that no intervention services were needed as Nechma is receiving services through her primary care physician and receives therapy at school. The prior referrals also resulted in investigations that concluded there was no issue with mother's care of Nechma.
In August 2011, mother and her family had moved to an even larger home in another residential neighborhood. Currently residing in the home are mother, Maria R., her boyfriend, Rufino R., her two sons and her three daughters. Mother is still working but was recently on maternity leave after giving birth to a baby girl. Rufino R. is the infant's father. Feliciano also met with Shanaira's therapist. Shanaria had returned to therapy with her former therapist to address her possible anxiety about the outcome of the new hearing in her case. Mother also has resumed therapy.
Renewed criminal background checks reveal that Rufino R. has a 2005 conviction for purchase of cocaine. No recent convictions were reported for mother or Rufino R. Although mother had been arrested for driving under the influence in February 2010, there is no evidence of a conviction, or of any level of recent, persistent substance abuse by Maria R. or Rufino R. which places Shanaira or any of the other children in the home at risk. The children told Feliciano they have not observed any substance abuse.
Feliciano spoke with Shanaira and all her family members, including a maternal aunt who lives close by and supports mother. Shanaira still shares a room with her sister, Nechma. The home and Shanaira's room were very clean and nicely decorated. Shanaira's clothes were in drawers and her closets were neatly arranged.
Feliciano observed Shanaira playing with her siblings and her cousins and all the children appeared to get along well. Shanaira and Feliciano spoke about the importance of improving Shanaira's reading skills, and Feliciano encouraged her to read more. Shanaira admitted she should read more, and showed Feliciano several books she had read. She read aloud for Feliciano and did so fluently and without any difficulty.
Shanaira expressed to Feliciano that she likes living with her mother and that she thinks she should stay in Florida, "because it is with my mom, my brothers, my sister, my aunt and my cousins and I love them and they love me . . . They are my family and I love them and they mean a lot to me." Shanaira understood that any stress or anxiety she was feeling about the possibility of being removed from her mother's care could be explored with her therapist.
Shanaira did indicate she would be willing to vacation in Connecticut to see paternal relatives and cousins.
Feliciano spoke with Shanaira's aunt, who is close to mother. The aunt said mother is concerned about the pendency of this hearing. She indicated Shanaira has been doing very well in her mother's care the past few years.
Feliciano spoke with all the older children in the home about Rufino R. They indicated he was nice and that he and mother get along well. They denied witnessing any domestic violence or substance abuse in the home. They denied receiving or witnessing any physical discipline.
Feliciano concludes her report on the 2011 investigation by noting that despite some changes, Shanaira continues to do well and is very happy, clean and appropriately dressed. Her clinician has no concerns for mother's care for her daughter. Shanaira prefers to remain with her mother.
Shanaira's attorney filed an "addendum" in support of the motion to revoke commitment. She expressed concern that she be able to talk to Shanaira without any Florida family members present in order to ascertain her wishes without the possibility of any pressure or influence being exerted. This was arranged by the department with a social worker from the Florida child protection agency on July 25, 2011. During this conversation, counsel for Shanaira asked the Florida social worker to remain in the room during the telephone conversation to ensure Shanaira had no uncomfortable reactions. Shanaira remembered little about her past interactions with her attorney, undoubtedly due to the time that had elapsed since she left Connecticut at the age of seven. Shanaira did tell her attorney that she talks to her father, but not a lot. She doesn't remember much about her past time in Connecticut, but wouldn't mind coming to Connecticut to visit, but not to live. Shanaira could not remember the names of her grandparents and has no contact with them. She had no memory of father's sister, Aunt Jenny, with whom she had resided prior to leaving in Connecticut. Aunt Jenny was the licensed relative placement for Shanaira.
Shanaira did have good memories of the intervenor, Stephanie E., and her half sister, McKenzie, who is the child of Stephanie E. and Shanaira's father, Joel C. She remembered that Stephanie took good care of her, but she had had no contact with either since moving to Florida. While talking about Stephanie, Shanaira exhibited no distress.
Counsel for the child supports revocation, which she stated is Shanaira's express wish. Despite some concerns, none of which she claims the evidence supports as a reason to deny the motion for revocation, she did not request a period of protective supervision.
The intervenor also raised concerns in her closing argument.
"It is axiomatic that argument is not evidence." In re Justin F., 116 Conn.App. 83, 96, 97 A.2d 707 (Citation omitted; internal quotation marks omitted), appeal dismissed, 292 Conn. 913, 973 A.2d 660 (2009), cert. denied, 293 Conn. 914, 915, 978 A.2d 1109, 110, cert. denied sub. nom. Albright-Lazarri v. Connecticut, 130 S.Ct. 1298, 175 L.Ed.2d 1082 (2010).
The court will summarize these concerns and address them here. Mother has moved three times since last year, but always to a larger home to accommodate her growing family. Mother has a boyfriend with a single verified conviction that is now almost 7 years old. There was no evidence that he has a conviction for violation of probation. Mother has had another baby. There is no evidence that mother "concealed" her relationship with Rufino R. from Feliciano when Feliciano visited in September 2010. The evidence does not establish that she was involved with him prior to September 2010. The baby, born in August 2011, would have been conceived at least several months after Feliciano's September 2010 visit. Mother never completed the parenting classes she began in Florida in late 2006 or early 2007, but there is no evidence to support a need for such classes at this time. As a result of several anonymous phone calls, the Florida child protection agency has visited mother's home several times over the past few years to check on Nechma, a wheelchair-bound child with cerebral palsy, who undoubtedly requires more than average skill and attentiveness to parent, and Florida authorities have not found mother wanting. Mother, in fact, took four parenting classes shortly after Shanaira was returned to her, but her classes were terminated due to local budget issues. Both mother and Shanaira have attended counseling when necessary. It is clear mother continues to understand Shanaira's need for therapy and follows through when necessary. When Shanaira appeared to need further counseling as a result of the resurrection of this court battle, her mother sought help for her. Mother was arrested for drunk driving. Absent additional information, the court is not inclined to consider a mere arrest as grounds for either a substance abuse referral or Shanaira's removal from her mother's care.
Shanaira's involvement with the department began in Connecticut when the intervenor complained to the department that her father was neglecting her. His neglect was substantiated. Allegations that mother abused alcohol and engaged in domestic violence were not substantiated. The court has no evidence as to why mother was residing in Florida at the time Shanaira was removed pursuant to an order of temporary custody. However, mother physically came to Connecticut to appear and defend the neglect petition in 2006. She moved to vacate the order of temporary custody in July 2006, only a few months after Shanaira's removal.
As is expected of any biological parent or legal guardian from whom custody is removed, mother cooperated with reunification efforts to the point where Judge Wollenberg determined the child could safely and successfully be reunified with her. Nothing has occurred since December 2006 that causes this trier to conclude differently. The court finds by a fair preponderance of the evidence that none of the initial reasons for Shanaira's commitment: her past neglect in Connecticut while in father's care in Connecticut, her mother's absence from her life, or the need, as indicated by Judge Wollenberg when he ordered a short-lived commitment in 2006, to carefully transition her to residing with her mother, continue to exist. Shanaira is fully adjusted to her mother's home, and she has little contact with her father. The court further finds by a fair preponderance of the evidence that no new cause for commitment has arisen since the date of the filing of the neglect petition and no cause for commitment still exists. See In re Juvenile Appeal (Anonymous), 177 Conn. 648, 659, 420 A.2d 875 (1979).
Since the court has found by a fair preponderance of the evidence that the department has met its burden of proving that cause for Shanaira's commitment no longer exists, the burden shifts to the intervenor, the only party appearing and objecting to the revocation, to show it is not in Shanaira's best interests to revoke the commitment. The intervenor, who did not even attend the hearing, has not met that burden. She introduced no evidence to controvert the evidence introduced by the commissioner. She has failed to show that real and significant harm will come to Shanaira if her mother is awarded custody. The initial, primary goal of any child protection case where the department obtains custody is to reunify the child with his or her biological parent once that parent rehabilitates to the role of a fit parent. The fundamental right of a fit parent to the care and control of his or her child has a constitutional basis. See Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002).
The intervenor never even proposed any solid plan for what should happen to Shanaira should her commitment not be revoked. However close her connection to Shanaira was in 2006, it has, unfortunately, been eroded by the passage of time and the lack of contact between Shanaira and the intervenor since 2006. If Shanaira remains committed, the department might legally be required to bring her back to Connecticut solely for the purpose of achieving the case outcome the department maintains is in Shanaira's best interests — placing her back with her mother in Florida. This could necessitate a request to Florida for a study pursuant to the Interstate Compact on the Placement of Children and a prolonged wait for Florida's approval of the placement. General Statutes § 17a-175. Such home studies routinely take months to complete. There is nothing about Shanaira or her family's current situation that would justify such a cruel disruption to her stable and happy home situation. Shanaira already has returned to therapy due to the uncertainty the outcome of the appeal has created. Maria R. has four children residing with her, and at least two of her minor children are visible to the community. Maria R. has shown she can adequately address her children's needs and follow through with suggestions for services. Given the Florida department of children and families' response to anonymous complaints regarding Shanaira's sister, Nechma, the court also is assured that the Florida authorities are competent to protect their state's children, one of whom is now, indisputably, Shanaira.
Arguably, if, during the pendency of a case, a court is making a determination to place a child, even with an out-of-state biological parent, placement with the parent cannot be effectuated until the receiving state completes a compact home study and approves the placement. There was a wise and economic rationale underlying Judge Wollenberg's 2006 decision. He gave the department the opportunity to review mother's situation in Florida prior to sending Shanaira to that state, and when he was ready to send her, he entered an order that did not require that he retain any jurisdiction. He avoided the long wait for a Florida compact home study in accordance with the ICPC. If a commitment remains in effect, or even an order of protective supervision, the court's retention of jurisdiction makes it arguably illegal to "place" Shanaira with her mother in Florida absent Florida's first completing a home study and thereafter approving the "placement." See In re Emonie W., 129 Conn.App. 727, 21 A.3d 524 (2011); In re Yarisha F., 121 Conn.App. 150, 994 A.2d 296 (2010).
Conclusion
For the foregoing reasons, the court finds by a fair preponderance of the evidence that the cause for Shanaira's commitment no longer exists and that it is in Shanaira's best interests that her commitment be revoked. The commissioner's motion for revocation is granted. Sole custody and guardianship of Shanaira is awarded to her mother, Maria R. The clerk of the court is to prepare a certified copy of the court's order which is to be mailed to respondent, Maria R., as soon as possible.