Opinion
No. FA05 4001801-S
June 29, 2006
MEMORANDUM OF DECISION
This court held an evidentiary hearing on June 6, 2006 on a Motion to Modify Custody brought by Edith Hanlon, dated March 10 and filed in this court on April 26, 2006. The applicant is an intervening party and the paternal grandmother of Julio Bonilla, Jr. (d.o.b. 06/19/99) a seven-year-old minor. The defendant Olga Sierra is the child's mother who has been living with the child in Fitchburg, Massachusetts for the past eight months. A Massachusetts Court has previously agreed that Connecticut retain jurisdiction of this custody action.
On December 22, 2005, this court granted joint legal custody of the child to the mother and to Edith Hanlon, and physical custody to the mother with a specific schedule of visitation for Edith Hanlon.
At this June 6, 2006 hearing, the court advised the parties that the only evidence to be entered were acts that had occurred after the prior orders of December 22, 2005. (Petroni, J.T.R.) The applicant would have the burden of proof that there had been a substantial change in circumstances from the December 22, 2005 orders to the present time. "The burden is on the party seeking modification to show the existence of a substantial change in circumstances." Emerick v. Emerick, 28 Conn.App. 794, 802 (1992).
Present at this hearing were the father Julio Bonilla, represented by Attorney Carmine Guiliano, the Guardian ad Litem, Attorney Mark Volpe representing the child, the mother Olga Sierra, and the intervening paternal grandmother, Edith Hanlon, both acting pro se.
In her Motion to Modify Custody (#124), the applicant Edith Hanlon alleged that the custodial mother had failed a drug test and had given birth to another child Elijah X. Sierra, on March 5, 2006, who tested positive for drugs, both occurring after the prior orders were entered.
On March 7, 2006, the Massachusetts Department of Social Services filed a neglect petition against the mother, and on March 22, 2006, the Juvenile Court in Massachusetts granted a temporary emergency order granting custody of Julio and the newborn infant to the department. (Perez, J.) The mother voluntarily entered an inpatient drug rehabilitation program, and Julio and Elijah were allowed to live with her.
The Guardian ad Litem called one witness, Angel Jimenez, a caseworker for the Massachusetts Department of Social Services, who was assigned to monitor the mother in this rehabilitation program known as Entre Familia. The department recommended she remain in the program for a minimum of six months and then the department monitors the patient for a minimum of one year after she is discharged. She has been in the program for three months and is now doing well. However, shortly after entering, she had a relapse by purchasing and using alcohol in violation of the rules. He also testified that Julio has been enrolled in a regional elementary school, and is transported to and from this school on a daily basis. He is doing well now, although he first had difficulty in adjusting.
On cross examination, the mother admitted being addicted to marijuana and other drugs for the past six years. There has been one neglect petition filed against her in Massachusetts and numerous neglect petitions were filed by the DCF when she lived in Connecticut. She also admitted to striking Julio once, and that she has moved to different residences with Julio on numerous occasions while in Connecticut because of her life style.
She has requested this court to give her another chance to retain custody of Julio because this is the first time she was given the opportunity to enter a drug rehabilitation program as an inpatient.
The court has taken judicial notice of the facts and conditions imposed on the mother in its decision of December 22, 2005. (Petroni, J.T.R.) It also finds the following facts have occurred after this decision was rendered.
1.) The mother admitted using drugs and alcohol;
2.) Another child, Elijah X. Sierra was born on March 5, 2006, who tested drug positive. This child adds to her responsibilities as a mother;
3.) On March 7, 2006, the mother voluntarily enrolled in a drug rehabilitation program as an inpatient. She has completed three months of the six-month program recommended by the department in Massachusetts; and
4.) On March 22, 2006, a neglect petition was filed against her by the Massachusetts Department of Social Services, and the Juvenile Court granted an emergency custody order to the department for both Julio and Elijah. (Perez, J.)
In Kelly v. Kelly, 54 Conn.App. 50, 53-54 (1999) the court stated the law as follows: "To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstances warrants a modification of the existing order. In making such an inquiry, the trial court's discretion is essential. The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided . . . Rather, the trial court's discretion only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties." (Citations omitted.) Borkowski v. Borkowski, 228 Conn. 729, 737-38, 638 A.2d 1060 (1994).
Connecticut General Statutes Section 46b-56, Subsection (b) states in relevant part as follows: "In making or modifying any order in respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . ."
Connecticut General Statutes Section 46b-56(b) provides that: "In 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 that it would be detrimental to the child to permit the parent to have custody."
The paternal grandmother has rebutted the presumption and is able to provide the child with a stable home. There exists a strong bond between them and their love is reciprocal. The child has lived in her home on numerous occasions when he was living in Meriden.
On June 20, 2006, the court ordered Michael DelSanto, a Family Services Counselor to make a home visit to the paternal grandmother's home at 33 Gardner Street in Meriden with the consent of all parties. The applicant lives there with her husband and teenage daughter. Mr. DelSanto states in his report that Julio's bedroom, where he stays on overnights when he visits, was neat, tidy and appropriate.
The applicant Edith Hanlon has carried her burden of proof that there has been a substantial change in the child's circumstances since December 20, 2005, when the last custody and visitation orders were entered. She has also rebutted the presumption in Section 46b-56(b) that it would be detrimental for Julio to remain with his mother at this time. Therefore, from all the findings of fact and the reasons stated herein, it is in the child's best interest that physical custody be transferred to Edith Hanlon, the paternal grandmother. Her motion to modify custody dated March 10, 2006 is granted.
The parties shall continue to retain joint legal custody of the child as previously ordered, and the same visitation orders granted to the paternal grandmother shall now inure to the mother, and which remain in full force and effect.
The mother would be able to modify this order if and when she has satisfactorily completed the drug rehabilitation program and has recovered from her drug and alcohol addiction.