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IN RE JACCARI J.*

(AC 36608)

IN RE JUSTIN J.

(AC 36609)

Sheldon, Mullins and Foti, Js.

Argued September 8—officially released October 16, 2014**

(Appeal from Superior Court, judicial district of

Fairfield, Juvenile Matters at Bridgeport, B. Kaplan, J.)

David E. Schneider, Jr., for the appellant (respondent maternal grandmother).

Benjamin Zivyon, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney general, and Susan T. Pearlman, former assistant attorney

general, for the appellee (petitioner).

Barry A. Charles, for the appellee (respondent

father).
Opinion

MULLINS, J. The respondent Carol B., the maternal

grandmother of the minor children at issue in this matter (grandmother), appeals from the judgments of the

trial court removing her as guardian and custodian of

the children, Jaccari J. and Justin J., and ordering that

custody and guardianship be vested in the children’s

father, the respondent Angel J.1 On appeal, the grandmother claims that, after the court adjudicated the children neglected, it improperly employed a rebuttable

presumption in favor of the children’s father when

determining in whom to vest custody and guardianship

of the children, pursuant to General Statutes § 46b-129

(j) (2), and that the use of the rebuttable presumption

was harmful. We conclude that the court’s use of a

rebuttable presumption in favor of the children’s father

during the dispositional phase of the neglect proceedings was improper. That error notwithstanding, however, we further conclude, on the basis of the trial

court’s extensive uncontested factual findings and thorough best interest analysis, that the grandmother has

failed to demonstrate that she was harmed by the

court’s use of a rebuttable presumption in this case.

Accordingly, we affirm the judgments of the trial court.2

On April 25, 2005, the Probate Court awarded custody

and guardianship of the children to the grandmother.3

On June 19, 2013, the petitioner, the Commissioner of

Children and Families, filed a neglect petition on behalf

of the children. After the trial on the neglect petition,

the court found that, while living with the grandmother,

the children had ‘‘been denied proper care and attention, physically, educationally, emotionally, or morally,

and [had] been permitted to live under conditions, circumstances, or associations injurious to their wellbeing.’’ In its decision, the court noted that the children

have several medical and behavioral issues. They need

daily medication, and they lack exercise and healthy

eating habits.4 Appointments with doctors, nutritionists,

therapists and counselors were made for them but were

not attended, and previous therapy and medical providers discharged the children due to missed

appointments.

During its analysis of the dispositional phase of the

trial, the court engaged in a thorough examination of

and comparison between placing the children with the

grandmother and placing them with their father.5 With

respect to the grandmother, the court made the following relevant findings. The children had resided with the

grandmother since they were infants, but her apartment

is small. The grandmother and her brother, who also

lives in the small apartment, had smoked in the home

despite the presence of the children and an oxygen

tank. The grandmother suffers from medical conditions

that limit her mobility; she is disabled. Her medical

conditions previously have caused her to be hospital-
ized, and have caused her to miss, cancel, reschedule

or be unable to schedule medical and counseling

appointments for the children. Those conditions also

hamper her ability to insure that the children get proper

medical care and therapy. She also has no means of

transportation. For months prior to trial, she refused

to allow the employees of the Department of Children

and Families to enter her home, and the trial court

stated that it was not sure whether the children were

residing there; Jaccari J. reported to a therapist that he

and his brother were residing, instead, with their great

aunt, who lives in the same apartment building as the

grandmother. The grandmother is strict with the children and has struggled with the parenting style recommended by therapists. The grandmother loves the

children and has tried to do the best that she can for

them.

With respect to the children’s father, Angel J., the

court found that he has been arrested and jailed previously; his criminal record includes felonies from the

1980s and 1990s. He does work at his father’s church

and runs errands for his father. His father, a reverend

at the church, allows Angel J., in exchange for the work

he does, to live rent free in a two-family home owned

by the church. The home is large enough for each child

to have his own room. Angel J.’s father also gives him

money for the care of the children and for food. Angel

J. has access to a car, and he transports the children

to and from school each day. He also is available to

take the children to their various medical and therapy

appointments. He always has been a part of the children’s lives and attends church with them on Sundays,

but has a hard time saying ‘‘no’’ to them and would

bring them to McDonald’s after school. The court found,

however, that Angel J. now understands that the children need to be on a strict diet. Angel J. loves the

children.

Significantly, the court found that the children’s

father could best tailor the food intake of the children

and regulate their meals. The children were more open

and acted differently when attending therapy sessions

with their father. The court also found that the father

could better follow the recommendations of the therapists in addressing the behavioral issues of the children

at home.

Ultimately, the court concluded that the children had

‘‘a long-term continuous relationship with their biological parent, the father. [The grandmother] has been

unable to provide for the boys’ medical and therapy

needs and follow through with the recommendations

of the therapists on a consistent basis. Their housing

is now in question as to the condition of the apartment,

the boys’ accommodations in the apartment and

whether the boys actually reside in that apartment. The

father has his own first floor unit with plenty of room
for the boys. He has transportation to take them to

school and to all their medical and therapy appointments. He has the flexibility with his schedule to accommodate their needs. He is their natural parent. There

is a presumption that the boys should be with a natural

parent. The court knows that presumption is rebuttable

but, in light of all the above, there has been insufficient

evidence presented to rebut the presumption.’’

The court went on to find, by a fair preponderance

of the evidence, that ‘‘it is in the best interest of both

[children] that guardianship and custody be transferred

to their father, Angel J., and that there be a period of

protective supervision for [six] months; that Angel J.

sign specific steps to ensure the boys’ medical and

therapeutic needs are met; that he conform their diet

to the recommendations of their doctors and the nutritionist; and that he allow [the grandmother] visitation

with the boys.’’6 Thereafter, the grandmother filed the

present appeal.

The petitioner filed motions for articulation

requesting that the court articulate whether it had

found, on the basis of the evidence, that the children’s

father was suitable and worthy to care for each of the

children. The grandmother offered no objection to the

petitioner’s motions, and the court responded by filing

an articulation related to each of the children, setting

forth the same findings in each articulation:

‘‘The court finds that Angel J., the biological father

of [the children] is suitable and worthy. This is based

on the record and findings stated in the court’s decision,

including, but not limited to, the following:

‘‘1. The father has had a loving, active and continuous

relationship with [the children] since [they were] young.

He was transporting [them] to school every day and to

medical and therapy appointments when allowed. He

had weekend visitations with [the children].

‘‘2. He has a motor vehicle to take [the children]

to [their] medical, therapy and specialist appointments

that are necessary to address [their] specialized needs.

‘‘3. The father resides on the first floor of a house

that has ample room for [the children]. They each have

their own room.

‘‘4. The father has the time necessary to take [the

children] to all [their] required appointments.

‘‘5. The father can prepare and supervise [the children’s] dietary needs.’’

On appeal, the grandmother does not contest the

court’s finding of neglect or any of the extensive findings supporting the court’s disposition in this case; she

argues only that, after adjudicating the children

neglected, the court improperly used a rebuttable presumption in favor of the children’s father, and that this

was harmful because the result of the proceedings may
have been different had the presumption not been

employed.7 Under the uncontested facts of this case,

which the court set forth in specific detail in its memorandum of decision, we conclude that, although the

use of the rebuttable presumption was improper, the

grandmother has failed to demonstrate that the error

was harmful.

Here, the grandmother contends that, although there

is no rebuttable presumption found in § 46b-129 (j) (2),

which applies in this case, the court improperly used

a presumption in favor of the parent when it was

determining in whom to vest custody and guardianship

of the children. We agree.

‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent

of the legislature. . . . In other words, we seek to

determine, in a reasoned manner, the meaning of the

statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply. . . . In seeking to determine that meaning,

General Statutes § 1-2z directs us first to consider the

text of the statute itself and its relationship to other

statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered.’’ (Internal quotation

marks omitted.) In re Elvin G., 310 Conn. 485, 499–500,

78 A.3d 797 (2013).

The parties agree that, after the court adjudicated the

children neglected in this case, the decision to transfer

custody and guardianship was governed by § 46b-129

(j) (2), which provides: ‘‘Upon finding and adjudging

that any child or youth is uncared-for, neglected or

abused the court may (A) commit such child or youth

to the Commissioner of Children and Families, and such

commitment shall remain in effect until further order

of the court, except that such commitment may be

revoked or parental rights terminated at any time by

the court;(B) vest such child’s or youth’s legal guardianship in any private or public agency that is permitted

by law to care for neglected, uncared-for or abused

children or youths or with any other person or persons

found to be suitable and worthy of such responsibility

by the court, including, but not limited to, any relative

of such child or youth by blood or marriage; (C) vest

such child’s or youth’s permanent legal guardianship in

any person or persons found to be suitable and worthy

of such responsibility by the court, including, but not

limited to, any relative of such child or youth by blood

or marriage in accordance with the requirements set

forth in subdivision (5) of this subsection; or (D) place

the child or youth in the custody of the parent or guardian with protective supervision by the Commissioner

of Children and Families subject to conditions estab-
lished by the court.’’

Unlike General Statutes § 46b-56b, which provides

that ‘‘[i]n any dispute as to the custody of a minor child

involving a parent and a nonparent, there shall be a

presumption that it is in the best interest of the child

to be in the custody of the parent, which presumption

may be rebutted by showing thatit would be detrimental

to the child to permit the parent to have custody,’’ § 46b129 (j) (2) contains no presumption in favor of a parent.

It is clear that § 46b-56b does not apply to this proceeding, and all parties concede this. See also footnotes 6

and 7 of this opinion. The parties also agree that the

court’s use of the presumption in this case was error,

and, on the basis of the plain language of § 46b-129 (j)

(2), we agree. We have found no applicable case law that

would lead us to a different conclusion. Accordingly, we

conclude that the court improperly applied a rebuttable

presumption in favor of the father in this case.

Next, the grandmother claims that the use of this

presumption by the trial court was harmful because the

results of the proceedings may have been different had

the court not employed such a presumption. We

disagree.

The parties agree that our standard ofreview requires

the grandmotherto prove that the court’s use of a rebuttable presumption in favor of the father was harmful.

See generally In re Avirex R., 151 Conn. App. 820,

833–34, 96 A.3d 662 (2014) (despite court’s use of

improper subsection of § 46b-129, impropriety was

harmless because court properly found that transfer

of guardianship was in child’s best interest and that

guardian was suitable and worthy); In re Elvin G.,

supra, 310 Conn. 506 (court’s failure to provide statutorily mandated steps was harmless because, ‘‘even if

such steps had been provided, they could not have

made a difference in the trial court’s finding of the

respondent’s failure to rehabilitate’’). ‘‘Errors of law

constitute no ground of reversal if they are immaterial

or such as have not injuriously affected the appellant.’’

(Internal quotation marks omitted.) Wood v. Connecticut Savings Bank, 87 Conn. 341, 350, 87 A. 983 (1913).

‘‘It is axiomatic that to require reversal, error must be

harmful. See General Statutes § 52-265 . . . .’’ (Citations omitted.) In re Juvenile Appeal (Docket No.

10718), 188 Conn. 259, 266, 449 A.2d 165 (1982) (Shea,

J., dissenting).

‘‘Questions of custodial placement generally are

resolved by a factbound determination of what is in

the best interest of the child . . . as shown by a fair

preponderance of the evidence. . . . To determine

whether a custodial placement is in the best interest of

the child, the court uses its broad discretion to choose a

place that will foster the child’s interest in sustained

growth, development, well-being, and in the continuity

and stability of its environment. . . . We have stated
that when making the determination of what is in the

best interest of the child, [t]he authority to exercise the

judicial discretion under the circumstances revealed by

the finding is not conferred upon this court, but upon

the trial court . . . . Nothing short of a conviction that

the action of the trial court is one which discloses a

clear abuse of discretion can warrant our interference.

. . . [G]reat weight is given to the judgment of the trial

court because of [the court’s] opportunity to observe

the parties and the evidence. . . . [Appellate courts]

are not in a position to second-guess the opinions of

witnesses, professional or otherwise, nor the observations and conclusions of the [trial court] when they are

based on reliable evidence.’’ (Internal quotation marks

omitted.) In re Isaiah J., 141 Conn. App. 474, 476, 62

A.3d 635, cert. denied, 308 Conn. 936, 66 A.3d 498 (2013).

In the present case, the court very clearly set forth

its reasons for transferring custody and guardianship

of the children from the grandmother to the children’s

father. It is evident from the court’s findings that it

believed that the grandmother loves these children and

that she has provided for them to the best of her ability.

Nevertheless, the grandmother has, inter alia, extensive

health issues that render her unable to provide for the

particular needs of these children, despite her desire

to do so.

The court, in turn, found that the children’s father

has the desire and the means to care for his children

and to address their particular medical and behavioral

concerns. It further found that it would be in the best

interest of the children for custody and guardianship

to be transferred to the father, and that he is a suitable

and worthy guardian. The grandmother does not contest any of the court’s findings, and they are fully supported by the record. Accordingly, although the court

improperly stated that there was a rebuttable presumption in favor of the parent, it is clear, based on its

best interest analysis, that the presumption played an

insignificant role, if any, in the court’s reasoned decision; the court made the necessary findings pursuant

to § 46b-129 (j) (2) to support its decision to transfer

custody and guardianship to Angel J. Accordingly, we

affirm that decision.

The judgments are affirmed.

In this opinion the other judges concurred.

* In accordance with the spirit and intent of General Statutes § 46b-142

(b) and Practice Book § 79a-12, the names of the parties involved in this

appeal are not disclosed. The records and papers of this case shall be open

for inspection only to persons having a proper interest therein and upon

order of the Appellate Court.

** October 16, 2014, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 The mother of the children, the respondent Janielle B., has filed a position

paper in this court adopting the brief of the grandmother. During the trial,

the attorney for the children asked that the children remain with the grandmother. On appeal, however, the attorney for the children and the attorney

for the respondent father have filed position papers adopting the brief of
the petitioner, the Commissioner of Children and Families.

2 We note that the grandmother filed separate appeals in this case from

each of the individual judgments. Both judgments arise from the same

memorandum of decision and both appeals are based on the same substantive issues, namely, whether the court improperly employed a rebuttable

presumption and whether the use of that presumption was harmful. As a

result, we will resolve both appeals in the same opinion in the interests of

judicial economy.

3 There is nothing in the record that indicates the circumstances surrounding the Probate Court’s award of custody and guardianship to the

grandmother.

4 The court set forth lengthy and significantfactualfindings in its memorandum of decision with respect to the grandmother’s medical condition as

well as the medical conditions of the minor children. It serves no useful

purpose to repeat all of the court’s specific findings as to these issues in

this opinion, except to note generally how these issues impacted the court’s

ultimate findings regarding the best placement for the children.

5 A careful review of the electronic transcripts in this case also reveals

that in March, 2013, the father apparently had filed, in the family court, a

petition for custody of the children. The exact status of that petition is not

part of our record. It also is not clear whether the trial court had a copy

of that petition or whether it considered the filing thereof when rendering

the judgments in this case.

6 The court issued the relevant orders on form JD-JM-65, generally used

in neglect proceedings pursuant to § 46b-129 (j), adjudicating the children

neglected and ordering that custody and guardianship be vested in the

children’s father, subject to six months of protective supervision.

At the same time, however, the court also issued two orders on form JDJM-76, which traditionally applies in revocation of commitment proceedings

under General Statutes § 46b-129 (m), ordering the revocation of the custody

and guardianship vested in the grandmother, and ordering that custody

and guardianship revert to the children’s father with six months protective

supervision. The propriety, import or relevance of this order has not been

raised, briefed or addressed by the parties, nor was a copy of the order

made part of the grandmother’s appendix.

7

In its memorandum of decision, the court did not cite to any statute

upon which it relied in applying the presumption at issue. We note, however,

that the petitioner, in an argument to the trial court, cited General Statutes

§ 46b-56b in support of the position that the court should transfer custody

and guardianship to Angel J.; the grandmother did not object to or argue

the inapplicability of that statute. Thus, we presume that the court was

referring to § 46b-56b when it stated that there was a rebuttal presumption

in favor of the father in this case. Section 46b-56b contains a statutory

rebuttable presumption in favor of the parent in custody disputes between

a parent and a nonparent. We use this opportunity to reiterate that the

applicability of § 46b-56b is restricted to dissolution and custody matters

brought under chapter 815j of the General Statutes and is not applicable in

cases that do not arise from dissolution of marriage, legal separation or

annulment actions. In re Cameron C., 103 Conn. App. 746, 754, 755, 930

A.2d 826 (2007) (‘‘[t]he plain meaning of § 46b-56[b], read within the context

of related statutes within chapter 815j, makes clear that this provision is

intended to apply only in dissolution of marriage, legal separation and annulment actions’’), cert. denied, 285 Conn. 906, 942 A.2d 414 (2008).