In re Zakai F.

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The Supreme Court reversed the judgment of the Appellate Court affirming the trial court's denial of Mother's motion for reinstatement of guardianship rights to a parent under Conn. Gen. Stat. 45a-611, holding that the trial court improperly denied Mother's motion for reinstatement of guardianship with respect to her minor son.

Specifically, the Supreme Court held (1) under section 45a-611, once a parent demonstrates that the factors that resulted in the removal of the parent as guardian have been satisfactorily resolved, the parent is entitled to a presumption that reinstatement of his or her guardianship rights is in the best interests of the child; and (2) the party opposing reinstatement must rebut the presumption by clear and convincing evidence; and (3) because it was unclear whether the trial court applied this presumption and because the court did not determine whether Mother had rebutted the presumption by clear and convincing evidence, the trial court erred in denying Mother's motion for reinstatement of guardianship.

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*********************************************** The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. *********************************************** IN RE ZAKAI F.* (SC 20234) Robinson, C. J., and Palmer, McDonald, D’Auria, Mullins, Kahn, and Ecker, Js.** Syllabus The respondent mother appealed to the Appellate Court from the judgment of the trial court, which denied her motion for reinstatement of guardianship rights with respect to her minor child, Z. The respondent had voluntarily agreed to relinquish temporary guardianship of Z to Z’s maternal aunt, the petitioner. Subsequently, when the respondent requested that the petitioner return Z to her care, the petitioner filed in the Probate Court a petition for immediate, temporary custody of Z and an application for the removal of the respondent as the guardian of Z. The Probate Court issued an order vesting the petitioner with immediate, temporary custody of Z. Thereafter, the case was transferred to the Superior Court, where the parties entered into a stipulated agreement, pursuant to which the court transferred guardianship of Z to the petitioner but ordered limited visitation between Z and the respondent. Subsequently, the respondent filed her motion for reinstatement. In denying the respondent’s motion and granting a separate motion filed by Z’s guardian ad litem to suspend overnight visitation with the respondent, the trial court found that the respondent was capable of adequately providing for Z and that there had never been a judicial adjudication of neglect or abuse of Z but nevertheless concluded, on the basis of a fair preponderance of the evidence, that reinstatement of the respondent’s guardianship rights was not in Z’s best interests. On appeal to the Appellate Court, the respondent claimed, inter alia, that the trial court violated her federal constitutional right to the care and custody of Z in denying her motion for reinstatement without finding that she was unfit and without finding by clear and convincing evidence that Z would be at a substantial risk of harm if guardianship were terminated. Thereafter, the Appellate Court affirmed the trial court’s judgment, concluding that the respondent could not prevail on her unpreserved claim under the third prong of State v. Golding (213 Conn. 233) because the petitioner and Z, through his guardian ad litem, rebutted the constitutional presumption that reunification with the respondent was in Z’s best interests. The Appellate Court also concluded that proof by a fair preponderance of the evidence was the applicable standard in a proceeding for reinstatement of guardianship. On the granting of certification, the respondent appealed to this court, claiming that she was entitled to a presumption that reinstatement was in the best interests of Z and to a heightened standard of proof. Held that a parent seeking reinstatement of guardianship pursuant to statute (§ 45a-611), who has demonstrated that the factors that resulted in the parent’s removal as guardian have been resolved satisfactorily, is entitled to a rebuttable, constitutional presumption that reinstatement is in the best interests of the child, a third party seeking to rebut that presumption must do so by clear and convincing evidence, and, because it was unclear whether the trial court applied this presumption, and because that court applied the preponderance of the evidence standard, the judgment of the Appellate Court was reversed, and the case was remanded for further proceedings: this court previously concluded in In re Juvenile Appeal (Anonymous) (177 Conn. 648) that parents of a child committed to the state youth and children services agency are entitled to a presumption, in the absence of a continuing cause for commitment, that revocation of such commitment will be in the child’s best interests, and it found that conclusion to be equally applicable to reinstatement of guardianship proceedings; moreover, this court concluded, after weighing the factors set forth in Mathews v. Eldridge (424 U.S. 319), that due process requires a third party seeking to rebut the presumption that reinstatement of guardianship is in the child’s best interests to do so by clear and convincing evidence, as the application of that heightened standard of proof in this context most appropriately balances the parent’s interest in the companionship, care, custody and management of his or her child, and the interest of the child in safety and consistency, as well as not being dislocated from the emotional attachments that derive from the intimacy of daily association with his or her parent; furthermore, application of the clear and convincing standard in this context serves to reduce the risk of error, the cost of which is significant given the weight of the private interests at stake, and serves the interests of the state in protecting the welfare of the child, reducing the cost and burden of guardianship proceedings, and ensuring that such proceedings are conducted fairly. Argued May 2, 2019—officially released July 22, 2020*** Procedural History Petition by the maternal aunt for immediate, temporary custody of the respondent mother’s minor child and application by the petitioner for the removal of the respondent as guardian of the child, brought to the Probate Court for the district of Derby, which issued an order vesting the petitioner with immediate, temporary custody of the child; thereafter, the case was transferred to the Superior Court in the judicial district of AnsoniaMilford, where the respondent filed a motion to vacate the order of immediate, temporary custody; subsequently, the case was transferred to the Superior Court in the judicial district of New Haven, Juvenile Matters, where the guardianship of the child was transferred to the petitioner pursuant to a stipulated agreement between the parties; thereafter, the court, Conway, J., denied the respondent’s motion to reinstate her guardianship rights, granted the motion filed by the guardian ad litem to suspend overnight visitation with the respondent, and rendered judgment thereon, from which the respondent appealed to the Appellate Court, DiPentima, C. J., and Alvord and Bear, Js., which affirmed the judgment of the trial court, and the respondent, on the granting of certification, appealed to this court. Reversed; further proceedings. Benjamin M. Wattenmaker, assigned counsel, for the appellant (respondent mother). Albert J. Oneto IV, assigned counsel, for the appellee (petitioner). David B. Rozwaski, assigned counsel, for the minor child. Joshua Michtom, assistant public defender, filed a brief for the Office of the Chief Public Defender as amicus curiae. Louise Truax and Leslie I. Jennings-Lax filed a brief for the Connecticut Chapter of the American Academy of Matrimonial Lawyers as amicus curiae. Stacy L. Schleif and Jay E. Siklick filed a brief for the Center for Children’s Advocacy, Inc., as amicus curiae. William Tong, attorney general, Clare Kindall, solicitor general, and Michael Besso, Benjamin Zivyon, Evan O’Roark and Sara Nadim Swallen, assistant attorneys general, filed a brief for the Commissioner of Children and Families as amicus curiae. Opinion McDONALD, J. In this certified appeal, we must determine whether there is a constitutional presumption that reinstatement of guardianship rights to a parent under General Statutes § 45a-6111 is in the best interests of the child and, if so, whether a heightened standard of proof is required to rebut that presumption. The respondent mother,2 Kristi F., appeals from the judgment of the Appellate Court, which affirmed the trial court’s denial of her motion for reinstatement of guardianship rights with respect to her minor son, Zakai F., on the basis that reinstatement was not in Zakai’s best interests. See In re Zakai F., 185 Conn. App. 752, 755, 776–77, 198 A.3d 135 (2018). On appeal, the respondent contends that she is entitled to a presumption that reinstatement is in the best interests of the child and that she is also entitled to a heightened standard of proof. We conclude that, under § 45a-611, once a parent demonstrates that the factors that resulted in the removal of the parent as guardian have been resolved satisfactorily, the parent is entitled to a presumption that reinstatement of guardianship rights is in the best interests of the child. We also conclude that the party opposing reinstatement must rebut this presumption by clear and convincing evidence. In the present case, because it is unclear whether the trial court applied this presumption, and because it did not determine that the petitioner had rebutted that presumption by clear and convincing evidence, we conclude that the trial court improperly denied the respondent’s motion for reinstatement of guardianship. Accordingly, we reverse the judgment of the Appellate Court. The record reveals the following relevant facts and procedural history. Zakai was born in early 2011 and resided with the respondent until approximately July, 2013, when the respondent voluntarily agreed that the petitioner, Nikki F., the respondent’s sister and Zakai’s maternal aunt, would care for Zakai. The parties agreed that the petitioner would temporarily care for Zakai while the respondent pursued employment opportunities and obtained appropriate housing and a reliable vehicle. The respondent reassumed custody and care of Zakai in late January or early February, 2014. Thereafter, Zakai was physically assaulted by the respondent’s live-in boyfriend, Montreal C., while the respondent was at work. Although both Montreal and the respondent were initially criminally charged after the assault, the charges against the respondent were dropped. Given the respondent’s continued work commitments and Zakai’s emotional and physical state following Montreal’s abuse of Zakai, the respondent agreed that Zakai again would stay temporarily with the peti- tioner. Less than one week later, the respondent requested that the petitioner return Zakai to her care. The petitioner did not respond to the respondent’s request but, instead, filed a petition for immediate, temporary custody and an application for removal of guardianship in the Probate Court for the district of Derby in February, 2014, alleging, among other things, that Montreal continued to live at the respondent’s home despite a restraining order barring him from contact with Zakai. The Probate Court issued an ex parte order granting the petitioner immediate, temporary custody of Zakai but did not rule on the petitioner’s motion for removal of guardianship. In July, 2014, ‘‘the respondent filed a motion in the Probate Court for transfer of the case to the Superior Court. On July 16, 2014, the motion was granted, and the case was transferred to the family division of the Superior Court in Milford. [In August], 2014, the respondent filed a motion to vacate the Probate Court order granting the petitioner temporary custody of Zakai. On September 29, 2014, by agreement of the parties, the court ordered that (1) a guardian ad litem be appointed for Zakai; (2) the respondent continue to engage in anger management counseling, therapy, and parenting classes; and (3) the respondent be afforded supervised visitation with Zakai at a location other than the home of the petitioner up to twice a week, subject to the requirements that the length of visitation be determined by the petitioner, visitation occur only at sites acceptable to the petitioner, and only persons acceptable to the petitioner be present during visitation. ‘‘In the fall of 2014, the respondent was arrested after an incident in a public park involving the petitioner and a maternal uncle of Zakai, and she was charged with threatening and breach of [the] peace. A criminal protective order was issued barring any contact between the respondent and the petitioner but reserving for the family division of the Superior Court the issue of the appropriateness of the respondent’s continued contact with Zakai. [In April], 2015, the court granted the petitioner’s motion to have the case transferred to the juvenile division of the Superior Court in New Haven. ‘‘On June 18, 2015, the court . . . ordered the Commissioner of Children and Families (commissioner) to conduct a guardianship study. The guardian ad litem moved for a [court-ordered] psychological evaluation of the parties, and that motion was granted on December 29, 2015.’’ (Footnote omitted.) Id., 756–57. In December, 2015, by agreement of the parties, the court modified the visitation schedule to allow a private agency to arrange two weekly visits between the respondent and Zakai. Thereafter, in January, 2016, the court increased the length of Sunday visits from two to four hours. Then, in March, 2016, the trial court granted an ex parte motion to suspend unsupervised visitation.3 A hearing on the respondent’s motion to vacate the order of temporary custody and the petitioner’s motion to transfer guardianship was scheduled for September 21, 2016. Before the hearing, however, the court approved an agreement resolving all outstanding issues. By agreement of the parties, the court transferred guardianship of Zakai to the petitioner, ordered unsupervised daytime visits between the respondent and Zakai, and ordered that, until the protective order was resolved or modified, the petitioner would have a third party present in her home while exchanging custody of Zakai with the respondent. The stipulation also required that any further expansions of the visitation schedule, including overnight visits, would be arranged through family therapy. Approximately nine months later, in June, 2017, the respondent filed a motion to reinstate her guardianship rights to Zakai. ‘‘Subsequently, the court again ordered the commissioner to conduct and complete a guardianship study pursuant to General Statutes § 46b-129 (n). The respondent subsequently filed a motion for overnight visitation on November 3, 2017, which was heard with her motion for reinstatement of guardianship. . . . [After several days of hearings on the motions, on] December 12, 2017, the court elected to hold in abeyance any definitive ruling on the motion to reinstate the respondent’s guardianship rights and instead ordered that Zakai immediately commence overnight visits with the respondent. The court further ordered that the respondent exclusively was to care for Zakai during the overnight visits and that there was to be no contact between Zakai and any unrelated male adults.’’4 Id., 758. On February 2, 2018, the guardian ad litem filed a motion to suspend overnight visitation, alleging that the respondent had violated the court’s December 12, 2017 order by allowing an unrelated male to stay at her home while Zakai was there. The guardian ad litem also represented that Zakai reported to his therapist that the respondent had hit him and his sister. Thereafter, the court reconvened the proceedings to hear testimony and receive other evidence regarding both the motion to suspend overnight visitation and the respondent’s June, 2017 motion to reinstate her guardianship rights. The court heard additional testimony from numerous witnesses on February 15, February 28, and March 1, 2018. On March 1, 2018, the court issued a memorandum of decision addressing the respondent’s motion to reinstate guardianship and the guardian ad litem’s motion to suspend overnight visitation. First, the court noted that, since the 2014 inception of this case, ‘‘there has never been a judicial adjudication of neglect or abuse as to Zakai, and no court has ever committed Zakai to the care and custody of [the Department of Children and Families],’’ and that Zakai’s placement with the petitioner, initially in 2013 and then following the February, 2014 assault, was by family agreement. The court next explained that § 45a-611 (b) was the appropriate statutory framework within which to consider the respondent’s motion for reinstatement of guardianship. See footnote 1 of this opinion. Under that statutory framework, the court found that ‘‘the reasons and events that prompted the agreed to 2016 transfer of guardianship have been sufficiently ameliorated. [The respondent] is capable of providing Zakai with appropriate housing, nutrition and clothing, and she is capable of meeting his educational, medical and physical safety needs. [The respondent] and Zakai share a loving parent-child like bond and, when [Zakai] feels he is in a safe environment, [the respondent] and [Zakai] enjoy quality time together.’’ (Footnote omitted.) The court then went on to consider whether reinstatement of guardianship was in Zakai’s best interests. The court stated that, ‘‘[c]ommencing in February, 2014, [the respondent] has remained steadfast in her efforts to have Zakai return to her care. Since 2014, she has obtained and sustained appropriate housing, [and] stable and sufficient employment, and she has engaged in court-ordered anger management [and] mental health treatment and abided by the conditions of a protracted criminal protective order and conditions of probation. She sought out and, for at least [one and one-half years], paid for professional parenting/visitation services, and she has diligently and respectfully attended juvenile court proceedings and abided by the juvenile court’s orders. By all accounts, [the respondent] successfully parents her younger daughter as a single mother.’’ The court weighed these findings against testimony and evidence regarding Zakai’s emotional and physical debilitation before and after overnight visitation with the respondent and his need for permanency. Specifically, the court credited the testimony of Zakai’s first grade teacher, Zakai’s therapist, and the petitioner. Each of these witnesses testified that, on days that Zakai is scheduled to visit with the respondent, he demonstrates regressive, debilitating behavior, and that there has been a negative change in his behavior since the commencement of overnight visits with the respondent.5 The court explained that, given the degree of early childhood trauma Zakai has experienced, the amount of time he has spent in the petitioner’s care, and the lack of security he feels when he is in the respondent’s care, to abruptly remove him from the petitioner’s care would be cruel and exacerbate his alarming behaviors. The court also noted that, ‘‘[p]roverbially speaking, Zakai is screaming for permanency; he wants and needs to know his one ‘forever’ home.’’ The court ultimately found that, based on a fair pre- ponderance of the evidence, it was not in Zakai’s best interests to return to the respondent’s care. As such, the court denied the respondent’s motion to reinstate guardianship and granted the guardian ad litem’s motion to suspend overnight visitation. The court further ordered that any visits between the respondent and Zakai would occur at the sole discretion of the petitioner. The respondent appealed from the judgment of the trial court to the Appellate Court. On appeal to the Appellate Court, the respondent claimed, among other things, that the trial court violated her fundamental right under the United States constitution to the care and custody of Zakai when it denied her motion for reinstatement of guardianship without finding that she was unfit and without finding by clear and convincing evidence that Zakai would be at a substantial risk of harm if the current guardianship were terminated.6 In re Zakai F., supra, 185 Conn. App. 760. The Appellate Court reviewed the respondent’s unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).7 See In re Zakai F., supra, 765–75. The Appellate Court concluded that, although the first two prongs of Golding were satisfied, the respondent could not prevail under the third prong. See id. Specifically, it concluded that ‘‘the [trial] court properly considered evidence from both the petitioner and Zakai, through their attorney and guardian ad litem, rebutting the presumption that reunification with the respondent was in Zakai’s best interest[s]. . . . Thus, because the court [correctly] determined that the petitioner and Zakai rebutted the constitutional presumption . . . the respondent has failed to satisfy the third Golding prong . . . .’’ Id., 769. The Appellate Court also concluded that proof by a fair preponderance of the evidence is the applicable standard to be applied in a proceeding for reinstatement of guardianship, and, thus, the trial court applied the correct standard. Id., 773–75. This certified appeal followed.8 I Resolution of the certified issue in this appeal requires us to first consider whether, when a parent seeks reinstatement of guardianship rights under § 45a-611, the parent is entitled to a constitutional presumption that reinstatement is in the best interests of the child, once the parent has established that the cause for removal no longer exists.9 Both the respondent and the petitioner agree that such a presumption is required.10 We begin with the text of § 45a-611 (b), which provides in relevant part: ‘‘If the court determines that the factors which resulted in the removal of the parent have been resolved satisfactorily, the court may remove the guardian and reinstate the parent as guardian of the person of the minor, if it determines that it is in the best interests of the minor to do so. . . .’’ Nothing in the language of the statute itself requires a presumption that reinstatement with a parent is in the best interests of the child. Practice Book § 35a-20 also governs the procedure by which a parent can seek reinstatement of guardianship. Practice Book § 35a-20 (d) provides: ‘‘The hearing on a motion for reinstatement of guardianship is dispositional in nature. The party seeking reinstatement of guardianship has the burden of proof to establish that cause for transfer of guardianship to another person or agency no longer exists. The judicial authority shall then determine if reinstatement of guardianship is in the child’s or youth’s best interest.’’ Practice Book § 35a20, like § 45a-611, does not address whether there is a presumption in place. To date, this court has not explicitly addressed whether a parent seeking reinstatement of guardianship is entitled to a constitutional presumption that reinstatement is in the best interests of the child. We do, however, have guidance from our case law bearing on this question in an analogous context and find our decision in In re Juvenile Appeal (Anonymous), 177 Conn. 648, 420 A.2d 875 (1979), instructive. In that case, a mother sought revocation of her child’s commitment to the Commissioner of Children and Youth Services, pursuant to General Statutes (Rev. to 1977) § 17-62 (f).11 See id., 650, 657. In In re Juvenile Appeal (Anonymous), the trial court ‘‘[r]ecogniz[ed] that cause for commitment no longer existed from the time the petition for revocation was brought . . . [but] nevertheless concluded that separation of the child from her foster family at that time would be contrary to her best interests, and consequently denied the [mother’s] petition for revocation.’’ Id., 658. On appeal, this court examined the language of General Statutes (Rev. to 1977) § 17-62 (f) and recognized that it set forth a burden shifting scheme. See id., 659. Specifically, this court concluded that ‘‘[c]learly the burden is [on] the person applying for the revocation of commitment to allege and prove that cause for commitment no longer exists. Once that has been established, as in this case, the inquiry becomes whether a continuation of the commitment will nevertheless serve the child’s best interests. On this point, when it is a natural parent who has moved to revoke commitment, the state must prove that it would not be in the best interests of the child to be returned to his or her natural parent.’’ (Emphasis in original.) Id. In explaining the burden shifting scheme, this court expressly held that a presumption that revocation of commitment would be in the child’s best interests should apply. This court explained that, ‘‘[although] it is certainly true, as we have held, that parents have no natural right to the custody of their children that can prevail over a disposition [a]ffecting the child’s best interests . . . parents are entitled to the presumption, [in the absence of] a continuing cause for commitment, that revocation will be in the child’s best interests unless the state can prove otherwise.’’ (Citations omitted.) Id., 659–60. In adopting a presumption that revocation is in the best interests of the child in In re Juvenile Appeal (Anonymous), this court relied on a prior decision of this court, Claffey v. Claffey, 135 Conn. 374, 64 A.2d 540 (1949). See In re Juvenile Appeal (Anonymous), supra, 177 Conn. 659–60. In Claffey, a mother sought to regain custody of her daughter from the paternal grandparents. See Claffey v. Claffey, supra, 374–75. This court explained that, ‘‘[a]t least, where the controversy is not between the father and the mother . . . the mother has a prior right to custody unless the circumstances are such that to give it to her would not be for the best interests of the child. . . . That, under normal circumstances, the interests of a young child . . . will be best served by growing up in the care of her mother does not admit of question.’’ (Citation omitted.) Id., 377. This court’s reliance on Claffey in In re Juvenile Appeal (Anonymous) demonstrates that the presumption that revocation is in the best interests of the child exists even when the other party involved is not a state actor. Ultimately, this court in In re Juvenile Appeal (Anonymous) affirmed in part the decision of the Superior Court, concluding that ‘‘[t]here was ample evidence from which the court could have concluded that despite the absence of a continuing cause for commitment, the state had demonstrated that because of the length of the separation between [the] mother and [the] child, for whatever reason, and the intervening relationship that had developed between the child and her foster family, it would not at that time have been in the child’s best interests to return to the custody of her mother. In the denial of the [mother’s] motion for revocation of commitment, there was no error.’’ In re Juvenile Appeal (Anonymous), supra, 177 Conn. 668. Although the commitment at issue in In re Juvenile Appeal (Anonymous) was to a state actor; see id., 659–60; we find the court’s conclusion requiring a presumption that revocation is in the best interests of the child equally applicable to reinstatement of guardianship proceedings in the present context. Indeed, in addressing the presumption, this court expressly stated that, ‘‘[i]n any controversy between a parent and [anyone not a parent—including relatives, friends or child care agencies] the parent . . . should have a strong initial advantage, to be lost only [when] it is shown that the child’s welfare plainly requires custody to be placed in the [other party].’’ (Footnote omitted; internal quota- tion marks omitted.) Id., 662; see id., 662 n.12; see also In re Bennett v. Jeffreys, 40 N.Y.2d 543, 548–49, 356 N.E.2d 277, 387 N.Y.S.2d 821 (1976). Furthermore, the cases relied on by this court in support of the presumption in In re Juvenile Appeal (Anonymous), supra, 177 Conn. 660–61, were cases involving private citizens, not state actors. See Claffey v. Claffey, supra, 135 Conn. 374, 377; In re Spence-Chapin Adoption Service v. Polk, 29 N.Y.2d 196, 198, 203, 274 N.E.2d 431, 324 N.Y.S.2d 937 (1971). Accordingly, we conclude that a parent seeking reinstatement of guardianship under § 45a-611, who has demonstrated that the factors that resulted in the parent’s removal as guardian have been resolved satisfactorily, is entitled to a presumption that reinstatement is in the best interests of the child. In the present case, the Appellate Court explained: ‘‘Although we are cognizant of the respondent’s claim that she, having never been adjudicated as an unfit parent, was entitled to a presumption that she would act in Zakai’s best interest[s], such a presumption is not absolute, but may instead be rebutted by contradictory evidence of Zakai’s best interest[s].’’ In re Zakai F., supra, 185 Conn. App. 767. Despite the fact that it is not clear whether the trial court applied a presumption that reinstatement was in Zakai’s best interests, the Appellate Court then concluded that, ‘‘because the court [correctly] determined that the petitioner and Zakai rebutted the constitutional presumption that it was in Zakai’s best interest[s] to be returned to the respondent’s care, the respondent has failed to satisfy the third Golding prong as to the constitutional presumption that, because she was a fit parent, the best interest[s] standard required that Zakai be returned to her.’’ Id., 769. On the basis of the foregoing, the Appellate Court correctly recognized that, once a parent has demonstrated that the cause for removal no longer exists, she is entitled to a presumption that reinstatement is in the best interests of the child. See id., 767, 768. It is unclear, however, that the trial court applied this presumption. Although the trial court weighed the respondent’s progress against testimony and evidence regarding Zakai’s emotional and physical debilitation before and after overnight visitation with the respondent and his need for permanency, it never explicitly applied a presumption. Indeed, this court has never previously addressed whether a parent seeking reinstatement of guardianship is entitled to a constitutional presumption that reinstatement is in the best interests of the child. Accordingly, because it is unclear whether the trial court applied a presumption, and in light of our conclusion in part II of this opinion that the trial court did not apply the correct standard of proof, the Appellate Court improperly affirmed the judgment of the trial court. II The presumption we have adopted in part I of this opinion allows a parent to file a motion for reinstatement of guardianship, and, as long as the parent can show that the reasons that led to the transfer of guardianship have been ameliorated, the parent is entitled to a rebuttable presumption that reinstatement is in the best interests of the child. Having now adopted this presumption, we also conclude, consistent therewith, that the burden must shift to the nonparent to rebut the presumption that reinstatement is in the best interests of the child. The question that remains is what standard of proof must be met for the nonparent to rebut the presumption. ‘‘The trial court’s determination of the proper legal standard in any given case is a question of law subject to our plenary review.’’ Fish v. Fish, 285 Conn. 24, 37, 939 A.2d 1040 (2008). ‘‘Where no standard of proof is provided in a statute, due process requires that the court apply a standard which is appropriate to the issues involved.’’ In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983). Here, § 45a-611 does not provide a standard of proof to be applied in a proceeding concerning the reinstatement of guardianship of a minor, and this court has never addressed which standard of proof is applicable. In this civil case, there are only two choices: the preponderance of the evidence or the clear and convincing evidence standard. The United States Supreme Court has made clear that ‘‘its decisions concerning constitutional burdens of proof have not turned on any presumption favoring any particular standard. To the contrary, the [c]ourt has engaged in a straightforward consideration of the factors identified in [Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)] to determine whether a particular standard of proof in a particular proceeding satisfies due process.’’ Santosky v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). The balancing test set forth in Eldridge involves weighing the following three factors: ‘‘the private interests affected by the proceeding; the risk of error created by the [s]tate’s chosen procedure; and the countervailing governmental interest supporting [the] use of the challenged procedure.’’ Id.; see also Mathews v. Eldridge, supra, 335. We evaluate each factor in turn. A We first consider the private interests affected by the proceeding. ‘‘The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be condemned to suffer grievous loss. . . . Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the [fact finder] turns on both the nature of the private interest threatened and the permanency of the threatened loss.’’ (Citations omitted; internal quotation marks omitted.) Santosky v. Kramer, supra, 455 U.S. 758. The nature of the threatened loss in the present case could not be more profound: it is the fundamental right to family integrity. See, e.g., id., 758–59; In re Juvenile Appeal (83-CD), supra, 189 Conn. 284. The ‘‘right to family integrity . . . encompasses the reciprocal rights of both [the] parent and [the] children . . . the interest of the parent in the companionship, care, custody and management of his or her children . . . and of the children in not being dislocated from the emotional attachments that derive from the intimacy of daily association . . . with the parent . . . .’’ (Citations omitted; internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 310, 709 A.2d 1089 (1998). In other words, parents and children share a compelling interest in remaining together as a family unit. See, e.g., In re Christina M., 280 Conn. 474, 486–87, 908 A.2d 1073 (2006) (‘‘[i]n cases involving parental rights, the rights of the child coexist and are intertwined with those of the parent’’ (internal quotation marks omitted)); see also, e.g., Santosky v. Kramer, supra, 455 U.S. 760 (‘‘the child and his parents share a vital interest in preventing erroneous termination of their natural relationship’’). It is well established that ‘‘the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.’’ Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). ‘‘The rights to conceive and to raise one’s children have been deemed ‘essential’ . . . ‘basic civil rights of man’ . . . and ‘[r]ights far more precious . . . than property rights’ . . . . ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ . . . The integrity of the family unit has found protection in the [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment . . . the [e]qual [p]rotection [c]lause of the [f]ourteenth [a]mendment . . . and the [n]inth [a]mendment [to the United States constitution] . . . .’’ (Citations omitted.) Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); see also In re Juvenile Appeal (83CD), supra, 189 Conn. 284. In addition to their fundamental right to family integrity, children have an additional interest in safety and consistency. See Osborne v. Ohio, 495 U.S. 103, 109, 110 S. Ct. 1691, 109 L. Ed. 2d 98 (1990). When there never has been a finding of abuse or neglect, the child’s safety interest should not necessarily be afforded equal weight with the shared constitutional interest in family integrity. This court has previously concluded in a related context that it is only when serious physical harm or immediate danger is present that the child’s and the parent’s shared interests in family integrity diverge. See In re Juvenile Appeal (83-CD), supra, 189 Conn. 287–88 (only when ‘‘serious physical illness or serious physical injury’’ or ‘‘immediate physical danger’’ is present does ‘‘the child’s interest[s] no longer [coincide] with [those] of the parent, thereby diminishing the magnitude of the parent’s right to family integrity . . . and therefore the state’s intervention as parens patriae to protect the child becomes so necessary that it can be considered paramount’’ (citation omitted; internal quotation marks omitted)). When, as in the present case, there has been no finding of parental unfitness or abuse or neglect, it is inappropriate to afford the child’s general interest in safety equal weight to the shared constitutional interest in family integrity.12 Cf. Santosky v. Kramer, supra, 455 U.S. 760 (‘‘At the [fact-finding stage], the [s]tate cannot presume that a child and his parents are adversaries. . . . [U]ntil the [s]tate proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.’’ (Citation omitted.)). Indeed, in a reinstatement of guardianship proceeding, prior to being entitled to the presumption, the parent must have already demonstrated that the factors that resulted in removal—including the child’s safety—have been resolved satisfactorily. See General Statutes § 45a-611 (b). To the extent that the child’s interest in safety is implicated, we note that the Supreme Court of Nebraska has explained that applying a heightened standard of proof in reinstatement of guardianship proceedings will actually promote the safety of children by encouraging parents experiencing difficulties to seek out temporary guardians, ‘‘safe in the knowledge that they will be able to regain custody in the future.’’ In re Guardianship of D.J., 268 Neb. 239, 248, 682 N.W.2d 238 (2004); see also Boddie v. Daniels, 288 Ga. 143, 146–47, 702 S.E.2d 172 (2010) (‘‘[G]uardianships are intended to encourage parents experiencing difficulties to temporarily turn over the custody and care of their children—safe in the knowledge that they will be able to regain custody in the future. This policy would be frustrated if guardianships were [difficult to terminate and constitutional parental rights were not protected], because parents would be less likely to voluntarily petition for a guardian to be appointed to care for their minor children. Therefore, children would unnecessarily be placed in jeopardy in many circumstances.’’ (Internal quotation marks omitted.)). Adopting the lower, preponderance of the evidence standard likely would serve as a significant disincentive for responsible parents to seek out temporary guardians in times of need for fear that they will not be able to reestablish guardianship of their child. Moreover, despite the fact that the reasons that resulted in the removal of the parent as guardian had been resolved satisfactorily, evidence that a child’s safety was nonetheless implicated would likely be among the strongest evidence a nonparent would have to rebut the presumption that reinstatement is in the best interests of the child by clear and convincing evidence.13 A child’s interests in family integrity and safety may be in equipoise in certain proceedings, such as a neglect proceeding, because the safety interest of the child is squarely implicated and the court has available to it different options, short of removal, that correspond to the risk to the child and the parent’s ability to meet the child’s needs. See In re Juvenile Appeal (83-CD), supra, 189 Conn. 287–88; see also Pamela B. v. Ment, supra, 244 Conn. 313–14 (‘‘[a]lthough a child’s physical and emotional well-being outweighs the interest in preserving the family integrity, the disruption of a child’s family environment should not be extended beyond what is unequivocally needed to safeguard and preserve the child’s best interests’’). The child’s interests in family integrity and safety are not in equipoise, however, during proceedings to reinstate guardianship when there has been no finding of abuse or neglect because, as discussed, the child’s safety interest may not be implicated, and the denial of reinstatement results in continued removal of the child from the parent’s custody and does so in the absence of imminent danger to the child.14 Accordingly, we conclude that the nature of the interests weighs in favor of a heightened standard of proof. Turning to the permanency of the deprivation, we note that, although a denial of reinstatement of guardianship under § 45a-611 does not necessarily work a permanent deprivation of all parental rights, it deprives the parent of the most essential attributes of parenthood, such as the right to control the child’s care, education, health, religion, and association for the duration of the guardianship.15 See Roth v. Weston, 259 Conn. 202, 216–17, 789 A.2d 431 (2002); see also General Statutes § 45a-604 (5) (‘‘ ‘[g]uardianship’ means guardianship of the person of a minor, and includes: (A) The obligation of care and control; (B) the authority to make major decisions affecting the minor’s education and welfare, including, but not limited to, consent determinations regarding marriage, enlistment in the armed forces and major medical, psychiatric or surgical treatment; and (C) upon the death of the minor, the authority to make decisions concerning funeral arrangements and the disposition of the body of the minor’’). As the present case demonstrates, a court denying reinstatement of guardianship may also deny visitation, thereby denying the parent of the ability to make important decisions regarding the child’s upbringing and also depriving the parent and the child of a meaningful relationship, creating a de facto and permanent termination of rights. See footnote 16 of this opinion. The United States Supreme Court has required ‘‘an intermediate standard of proof—clear and convincing evidence—when the individual interests at stake in a state proceeding are both particularly important and more substantial than mere loss of money.’’ (Internal quotation marks omitted.) Santosky v. Kramer, supra, 455 U.S. 756. Connecticut law implements the clear and convincing standard in a variety of contexts, including those that involve only monetary disputes. See, e.g., Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 819, 955 A.2d 15 (2008) (clear and convincing standard is appropriate standard of proof in common-law fraud cases); Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 226, 890 A.2d 509 (clear and convincing standard is required to determine whether attorney violated Rules of Professional Conduct), cert. denied, 549 U.S. 823, 127 S. Ct. 157, 166 L. Ed. 2d 39 (2006); Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 163–64, 681 A.2d 293 (1996) (clear and convincing evidence standard of proof is required to establish collusion); Papallo v. Lefebvre, 172 Conn. App. 746, 754, 161 A.3d 603 (2017) (clear and convincing standard of proof is required to establish fiduciary fair dealing). It would strain rationality if a parent could lose her constitutional right to parent her child by a mere preponderance of the evidence when a party must prove fraud for the purpose of recovering monetary damages, or a lawyer’s ethical lapse—claims certainly less weighty than the fundamental right to parent a child—by a heightened, clear and convincing standard. The United States Supreme Court has recognized that even a temporary deprivation of a constitutional right may require a heightened standard of proof. See Santosky v. Kramer, supra, 455 U.S. 759 (‘‘In [government initiated] proceedings to determine juvenile delinquency . . . civil commitment . . . deportation . . . and denaturalization . . . [the United States Supreme] Court has identified losses of individual liberty sufficiently serious to warrant imposition of an elevated burden of proof. Yet juvenile delinquency adjudications, civil commitment, deportation, and denaturalization, at least to a degree, are all reversible official actions.’’ (Citations omitted; emphasis in original.)). For example, in Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979), the United States Supreme Court held that the clear and convincing standard was required in a civil commitment proceeding despite the fact that the appellant had the right to periodic review of his condition and immediate release when he was no longer deemed to be a danger to himself or others. See id., 422, 433. This court has similarly recognized the importance of decisions temporarily affecting parental rights. We have explained that ‘‘[e]ven a temporary custody order may have a significant impact on a subsequent permanent custody decision . . . [by] establish[ing] a foundation for a stable long-term relationship that becomes an important factor in determining what final custodial arrangements are in the best interests of the child.’’ (Internal quotation marks omitted.) In re Shamika F., 256 Conn. 383, 403, 773 A.2d 347 (2001). As a result, this court has recognized that a temporary deprivation of a parent’s right to the care and custody of her child is such a serious harm that it has deemed interlocutory orders affecting that interest to be final judgments. See, e.g., Sweeney v. Sweeney, 271 Conn. 193, 208–11, 856 A.2d 997 (2004) (pendente lite order related to religious and educational upbringing of minor child); In re Shamika F., supra, 405–406 (order of temporary custody pursuant to neglect statute); Madigan v. Madigan, 224 Conn. 749, 756–58, 620 A.2d 1276 (1993) (order of temporary physical custody in dissolution action). The petitioner and the concurring and dissenting justice contend that, because a reinstatement of guardianship proceeding does not necessarily lead to a permanent termination of parental rights, given that the parent may file additional motions for reinstatement, due process does not require that we favor the parent’s interests over those of the child. We are not persuaded. First, adopting the heightened, clear and convincing standard does not favor parental rights over those of the child because both the parent and the child share a compelling interest in family integrity. Moreover, before a parent is entitled to the presumption, she must first demonstrate that the factors that resulted in her removal as guardian have been resolved satisfactorily. In many cases, this means that the parent is fit. If other circumstances, however, implicate the child’s interest in safety, the nonparent will have strong evidence to rebut the presumption that reinstatement is in the best interests of the child. As such, the clear and convincing standard most appropriately balances these interests. Additionally, the fact that the parent may reapply for reinstatement in the future is often an illusory right given that the amount of time the child and the parent have been separated will only continue to grow, and the child likely will continue to bond more and more with the guardian. Thus, the fact that a parent may again seek reinstatement of guardianship does not diminish the constitutional significance of the deprivation of the interest at stake because ‘‘[a] lost opportunity to spend significant time with one’s child is not recoverable.’’16 Taff v. Bettcher, 243 Conn. 380, 387, 703 A.2d 759 (1997). Accordingly, we conclude that the first factor of the balancing test set forth in Eldridge strongly weighs in favor of the heightened, clear and convincing standard of proof. B We next consider the second factor in the Eldridge balancing test, specifically, ‘‘both the risk of erroneous deprivation of private interests resulting from [the] use of a ‘fair preponderance’ standard and the likelihood that a higher evidentiary standard would reduce that risk. . . . [Because] the . . . proceeding is an adversary contest between the [third party] and the . . . parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous [factfinding] between these two parties.’’ (Citation omitted.) Santosky v. Kramer, supra, 455 U.S. 761. A significant concern arises when a third party is involved in reinstatement of guardianship proceedings, which demonstrates that the preponderance standard creates a risk of erroneous deprivation of the right to family integrity. Before appointing a guardian, the state must use reasonable efforts to keep the child with the parent. See General Statutes § 45a-610; see also General Statutes § 17a-111b (a) (commissioner has statutory duty to seek to reunify child and parent except under very limited circumstances). By contrast, when a third party is opposing reinstatement of guardianship, neither the state nor the third party has any obligation to aid in the reunification of the family. The parent is not afforded the same protections to which she would have been entitled if the state, rather than a third party, had opposed reinstatement. These protections are important because, if no attempts are made to reunify the parent and the child, the child will continue to spend more time with the guardian and, as the concurring and dissenting justice notes, the child will develop stronger emotional bonds with the guardian, further reducing the parent’s ability to reunify the family.17 These protections are even more important during a proceeding to reinstate guardianship to a parent when there has been no finding of unfitness because, as the United States Supreme Court has noted, ‘‘until the [s]tate proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. Thus, at the [fact-finding stage], the interests of the child and his natural parents coincide to favor [the] use of [error reducing] procedures.’’ (Footnote omitted.) Santosky v. Kramer, supra, 455 U.S. 760–61. For these reasons, we also respectfully disagree with the concurring and dissenting justice’s assertion that the existence of the presumption that reinstatement is in the best interests of the child alone provides sufficient protection to a parent’s fundamental interest in family integrity. The present case also implicates a concern that was raised in Santosky. Reinstatement of guardianship proceedings employ the best interests of the child analysis; see General Statutes § 45a-611 (b); which leaves the reinstatement determination unusually open to the subjective assessment of the trial judge. See Roth v. Weston, supra, 259 Conn. 223 (‘‘[the best interest] standard delegates to judges authority to apply their own personal and essentially unreviewable lifestyle preferences to resolving each dispute’’ (internal quotation marks omitted)). As noted in the amicus brief filed by the Office of the Chief Public Defender, this subjective analysis ‘‘that considers a child’s best interests when a parent is fit to care for that child runs the very real risk of infringing the . . . right [of the parents and the children] to family integrity on the basis of poverty . . . .’’ In similar contexts, this court has recognized this risk. See, e.g., In re Juvenile Appeal (83-CD), supra, 189 Conn. 292 (‘‘[there is a] risk that judges or social workers will be tempted, consciously or unconsciously, to compare unfavorably the material advantages of the child’s natural parents with those of prospective adoptive parents [or foster parents]’’ (internal quotation marks omitted)). Given that this subjective assessment will often negatively affect parents of lower socioeconomic status; see State v. Anonymous, 179 Conn. 155, 167–68, 425 A.2d 939 (1979); requiring the heightened, clear and convincing standard will appropriately balance the interests of the parent and the child and protect parents, especially those of lower socioeconomic status, from the erroneous deprivation of their parental rights. Given the weight of the private interests at stake, the cost of any error in reinstatement of guardianship rights in a fit parent is significant. ‘‘Increasing the burden of proof is one way to impress the [fact finder] with the importance of the decision and thereby perhaps to reduce the chances that inappropriate [deprivations of guardianship] will be ordered.’’ (Internal quotation marks omitted.) Santosky v. Kramer, supra, 455 U.S. 764–65. As we have explained, ‘‘[t]he clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt.’’ Miller v. Commissioner of Correction, 242 Conn. 745, 794, 700 A.2d 1108 (1997). Implementing the intermediate level, clear and convincing standard would help to reduce the risk of erroneous decisions. See id., 795 (‘‘clear and convincing evidence standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory’’ (internal quotation marks omitted)). Accordingly, we conclude that the second factor of the balancing test set forth in Eldridge weighs in favor of the clear and convincing standard of proof. C Finally, the third factor requires that we consider the countervailing governmental interest supporting the use of the challenged procedure, namely, ‘‘the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’’ Mathews v. Eldridge, supra, 424 U.S. 335. Although the state is not a direct party in a guardianship proceeding between two private parties and has no direct interest in reinstatement proceedings under § 45a-611, the state does have an interest in protecting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings. See Santosky v. Kramer, supra, 455 U.S. 766; Fish v. Fish, supra, 285 Conn. 86. The courts also have an interest in balancing the interests of the state and the parents by ensuring that the proceeding is conducted fairly. We conclude that the clear and convincing evidence standard adequately serves these interests. As the United States Supreme Court has explained, because ‘‘the [s]tate has an urgent interest in the welfare of the child, it shares the parent’s interest in an accurate and just decision at the [fact-finding] proceeding. . . . As parens patriae, the [s]tate’s goal is to provide the child with a permanent home. . . . Yet [although] there is still reason to believe that positive, nurturing parentchild relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds. . . . [T]he [s]tate registers no gain [toward] its declared goals when it separates children from the custody of fit parents.’’ (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Santosky v. Kramer, supra, 455 U.S. 766–67. Thus, when a parent who has never been found to be unfit seeks reinstatement of guardianship, the state’s interest favors protecting the interest of the parent and the child in family integrity. The state’s administrative and fiscal burdens do not weigh in favor of a lesser standard of proof. Our trial judges are well versed in the application of the clear and convincing standard of proof in other related contexts. See, e.g., General Statutes § 45a-610 (removal of parents as guardians); see also, e.g., General Statutes §§ 17a-111b, 17a-112 and 45a-717 (termination of parental rights); General Statutes § 45a-650 (appointment of conservator). Balancing these three factors, we conclude that due process requires application of the clear and convincing standard of proof to rebut the presumption that reinstatement of guardianship is in the best interests of the child under § 45a-611.18 Cf. In re Juvenile Appeal (Anonymous), supra, 177 Conn. 662 (‘‘[i]n any controversy between a parent and a [third party] the parent . . . should have a strong initial advantage, to be lost only where it is shown that the child’s welfare plainly requires custody to be placed in the [third party]’’ (emphasis added; footnote omitted; internal quotation marks omitted)).19 As we have explained, ‘‘[t]he goals of strengthening the family and enhancing long-term parental capacity for child care despite temporary difficulties would be seriously undermined if parents in need of help could not safely entrust their children, even for short emergencies, to someone who could give them better interim care. Such temporary arrangements under circumstances of extraordinary need should not put parents in the position of risking permanent loss of their children due to the intervention of the state.’’ Id., 660–61. A party who opposes the reinstatement of a parent’s constitutional rights to rear a child must be required to overcome the presumption by more than a mere preponderance of the evidence—the lowest and most basic level of evidentiary proof at trial. Indeed, in order to trigger the presumption, the parent must have already demonstrated that the factors that resulted in her removal as guardian have been resolved. Accordingly, we conclude that the clear and convincing standard appropriately balances the shared interest of the parent and the child in family integrity and, to the extent implicated, the child’s additional interest in safety. Courts from other jurisdictions have similarly required a clear and convincing standard of proof when a parent who has never been found to be unfit seeks reinstatement of guardianship rights. See, e.g., In re Parental Responsibilities of E.S., 264 P.3d 623, 627 (Colo. App. 2011); Tourison v. Pepper, 51 A.3d 470, 471–72 (Del. 2012); Boddie v. Daniels, supra, 288 Ga. 146; Hunter v. Hunter, 484 Mich. 247, 265, 771 N.W.2d 694 (2009); In re Guardianship of D.J., supra, 268 Neb. 249; In re Guardianship of Reena D., 163 N.H. 107, 114–15, 35 A.3d 509 (2011); see also, e.g., In re Guardianship of L.L., 745 N.E.2d 222, 230 (Ind. App.) (applying ‘‘clear and cogent evidence’’ standard), transfer denied sub nom. Froelich v. Clark, 753 N.E.2d 17 (Ind. 2001).20 Although we decline to go as far, the Supreme Court of Arkansas has held that all a fit parent needs to do to terminate a third-party guardianship created by consent is to revoke his or her consent to the guardianship. In re Guardianship of W.L., 467 S.W.3d 129, 133–34 (Ark. 2015). Thus, we conclude that a third party seeking to rebut the presumption that reinstatement of guardianship rights to a parent who has never been found to be unfit is in the best interests of the child must do so by clear and convincing evidence. In the present case, the respondent voluntarily relinquished temporary guardianship of Zakai. After spending years in the custody of the petitioner, the trial court ultimately concluded that the factors that resulted in the removal of the respondent as guardian had been resolved and that the respondent had demonstrated that she was capable of providing for Zakai. Throughout this case, there has never been a judicial adjudication of parental unfitness or neglect or abuse of Zakai. The trial court, however, went on to conclude—by a preponderance of the evidence—that, on the basis of Zakai’s emotional and physical debilitation before and after visitation with the respondent, and the length of time Zakai has been in the petitioner’s care, reinstatement of guardianship was not in Zakai’s best interests.21 Because the trial court applied the preponderance of the evidence standard and not the clear and convincing evidence standard, the respondent’s constitutional due process rights were violated, and, as such, she has satisfied the third prong of Golding. Accordingly, the Appellate Court improperly affirmed the judgment of the trial court, and the case must be remanded for further proceedings. See Deroy v. Estate of Baron, 136 Conn. App. 123, 127, 43 A.3d 759 (2012) (‘‘[w]hen an incorrect legal standard is applied, the appropriate remedy is to reverse the judgment of the trial court and to remand the [case] for further proceedings’’); see also St. Joseph’s Living Center, Inc. v. Windham, 290 Conn. 695, 765, 966 A.2d 188 (2009) (Schaller, J., concurring in part and dissenting in part) (same). The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to that court for further proceedings according to law. In this opinion ROBINSON, C. J., and PALMER and D’AURIA, Js., 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 who have a proper interest therein and upon order of the Supreme Court. Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018); we decline to identify any party protected or sought to be protected under a protective order or a restraining order that was issued or applied for, or others through whom that party’s identity may be ascertained. ** The listing of justices reflects their seniority status on this court as of the date of oral argument. *** July 22, 2020, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. 1 General Statutes § 45a-611 provides in relevant part: ‘‘(b) In the case of a parent who seeks reinstatement, the court shall hold a hearing . . . . If the court determines that the factors which resulted in the removal of the parent have been resolved satisfactorily, the court may remove the guardian and reinstate the parent as guardian of the person of the minor, if it determines that it is in the best interests of the minor to do so. . . .’’ Although § 45a-611 (b) was the subject of technical amendments in 2018; see Public Acts 2018, No. 18-45, § 9; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute. 2 We note that, although the respondent mother filed the motion at issue in this appeal, the original action commenced when the child’s aunt brought a petition for immediate, temporary custody and an application for removal of guardianship. Therefore, we refer to the mother as the respondent and to the aunt as the petitioner throughout this opinion. This nomenclature is also consistent with that utilized by the Appellate Court. 3 The motion alleged that the respondent and Montreal had been arrested on felony narcotics charges. The respondent testified, however, that the March, 2016 drug charges were not pursued. The trial court noted, it ‘‘may be that it was also in 2016 when [the respondent] was placed on probation for the 2014 breach of [the] peace conviction . . . . [The respondent] testified [that] a condition of probation was urine testing and remaining substance abuse free.’’ (Citation omitted.) 4 In making its December, 2017 ruling to commence overnight visits with the respondent, the trial court explained that the respondent had struggled to sustain a lifestyle conducive to having Zakai return to her care. Specifically, the court noted the choices in child care the respondent had made that resulted in Montreal’s abuse of Zakai and the death of her eldest infant daughter, who died while the respondent left her daughter in the care of the child’s father. The court also noted that ‘‘[i]t took her a long time, and some would argue too long, to disengage from [Montreal]. But she appears to have permanently done so for [more than one] year now.’’ (Emphasis added; internal quotation marks omitted.) 5 Zakai’s first grade teacher testified that Zakai ‘‘consistently exhibited less than ideal behavior [on] the days he [was] scheduled to visit with [the respondent]’’ and that those behaviors ‘‘escalated in both intensity and frequency’’ since the court ordered increased visitation with the respondent. Zakai’s teacher further testified that, on the days that Zakai was scheduled to visit with the respondent, he asked to go to the school nurse and reported having gotten sick in the bathroom, when he was not sick. The petitioner also testified that Zakai threw temper tantrums and exhibited other problematic behavior on days that he was scheduled to visit with the respondent, and that he asked to go to the doctor to get a note that he is sick. 6 In the Appellate Court, the respondent also claimed that the trial court had abused its discretion in determining that reinstatement of the respondent as guardian was not in Zakai’s best interests. See In re Zakai F., supra, 185 Conn. App. 755. The Appellate Court concluded that the trial court did not abuse its discretion. Id., 776–77. On appeal to this court, the respondent did not pursue her claim of abuse of discretion. 7 ‘‘Under Golding, it is well settled that a defendant may prevail on an unpreserved claim when: ‘(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ . . . State v. Golding, supra, 213 Conn. 239–40; see In re Yasiel R., [supra, 317 Conn. 781] (modifying third prong of Golding).’’ State v. McClain, 324 Conn. 802, 809 n.5, 155 A.3d 209 (2017). 8 We granted the respondent’s petition for certification to appeal, limited to the following issue: ‘‘When a parent who has temporarily relinquished custody seeks reinstatement of guardianship rights under . . . § 45a-611, is there a constitutional presumption that reinstatement is in the best interests of the child, and, if so, does a heightened [standard] of proof apply pursuant to Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)?’’ In re Zakai F., 330 Conn. 957, 198 A.3d 584 (2018). Upon review of the record and the claims raised before the Appellate Court, we now conclude that the certified question is not an adequate statement of the issue properly before this court. Specifically, the respondent had not temporarily relinquished custody, but, after the Probate Court granted the petitioner’s request for an order of immediate, temporary custody in 2014, approximately two years later, the respondent agreed to a transfer of guardianship in 2016. Accordingly, we reformulate the certified question as follows: ‘‘When a parent who has agreed to a transfer of guardianship seeks reinstatement of guardianship rights under . . . § 45a-611, is there a constitutional presumption that reinstatement is in the best interests of the child, and, if so, does a heightened standard of proof apply pursuant to Santosky v. Kramer, supra, 455 U.S. 745?’’ See, e.g., State v. Skipwith, 326 Conn. 512, 516 n.4, 165 A.3d 1211 (2017) (court may reformulate certified question to conform to issue actually presented and to be decided on appeal); State v. Ouellette, 295 Conn. 173, 183–84, 989 A.2d 1048 (2010) (same). 9 We agree with the Appellate Court that this issue was not preserved, but we nevertheless review it pursuant to State v. Golding, supra, 213 Conn. 239–40. See footnote 7 of this opinion. We conclude that the respondent has satisfied the first two prongs of Golding, and, therefore, we focus our analysis on the third prong. Under the third prong, we consider whether ‘‘the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial . . . .’’ State v. Golding, supra, 240; see In re Yasiel R., supra, 317 Conn. 781 (modifying third prong of Golding). 10 The guardian ad litem for the minor child argues that, even if a constitutional presumption that reinstatement is in the best interests of the child is generally required, it is not required under the facts of the present case. He fails, however, to cite any legal authority in support of his position. Accordingly, we deem that claim to be inadequately briefed and decline to address it. See Estate of Rock v. University of Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016) (‘‘Claims are inadequately briefed when they are merely mentioned and not briefed beyond a bare assertion. . . . Claims are also inadequately briefed when they . . . consist of conclusory assertions . . . with no mention of relevant authority and minimal or no citations from the record . . . .’’ (Internal quotation marks omitted.)). 11 We note that language similar to that of General Statutes (Rev. to 1977) § 17-62 (f) is presently codified at General Statutes § 46b-129 (n). We also note that § 46b-129 (n) is similar to § 45a-611. 12 The concurring and dissenting justice asserts that the trial court’s finding that ‘‘Zakai [did] not feel safe and secure in the [respondent’s] care’’ provides a sufficient basis to conclude that the shared constitutional interests of Zakai and the respondent in family integrity are not aligned. Indeed, the concurring and dissenting justice also notes that the ‘‘very nature of a proceeding for reinstatement of guardianship necessarily involves a situation in which a parent has not been the primary caretaker for the child for some period of time,’’ and the child has likely established ‘‘emotional connections and bonds with the individual who has been providing daily care to the child . . . .’’ The concurring and dissenting justice reasons that, ‘‘the longer the child is apart from his or her parent, the more that his or her interests may diverge from that of the parent.’’ On the other hand, however, the concurring and dissenting justice contends that the failure to reinstate guardianship is not permanent. These two statements are seemingly at odds with each other. Although a parent technically may continue to seek reinstatement of guardianship pursuant to § 45a-611, if the child’s emotional connections with the guardian grow stronger with each passing day, the parent will never be successful at reinstating guardianship. This creates an effectively permanent deprivation, which requires heightened safeguards to protect the interests involved. See, e.g., Santosky v. Kramer, supra, 455 U.S. 758–61; Lassiter v. Dept. of Social Services, 452 U.S. 18, 27, 101 S. Ct. 2153, 2160, 68 L. Ed. 2d 640 (1981). 13 The concurring and dissenting justice states that we do not appropriately balance the interests of the child with those of the parent, suggesting that by adopting a heightened standard of proof, we create an insurmountable obstacle to the party opposing reinstatement. We disagree. The presumption we adopted in part I of this opinion is a rebuttable one. Numerous factors, most notably the safety of the child, could be sufficient to rebut the presumption by clear and convincing evidence. This strikes the appropriate balance between the fundamental right to family integrity and a recognition that circumstances may still exist that render reinstatement not in the best interests of the child. 14 The express statutory protection for the safety of children contained in § 45a-611 (b)—that the court determine that the grounds for removal no longer exist—is not included in the third-party custody statute that was at issue in Fish v. Fish, supra, 285 Conn. 24. In Fish, this court held that a third party must, among other things, demonstrate that parental custody would be detrimental to the child. Id., 89. There is no such requirement in a reinstatement proceeding. As a result, reinstatement proceedings are also distinguishable from third-party custody proceedings. 15 Although the extent of deprivation is one factor to consider, a brightline rule pursuant to which only permanent termination of parental rights cases would be subject to a clear and convincing standard is inappropriate. As the United States Supreme Court has explained, ‘‘[u]nlike the [c]ourt’s [right to counsel] rulings, its decisions concerning constitutional burdens of proof have not turned on any presumption favoring any particular standard. To the contrary, the [c]ourt has engaged in a straightforward consideration of the factors identified in [Mathews v. Eldridge, supra, 424 U.S. 335] to determine whether a particular standard of proof in a particular proceeding satisfies due process.’’ Santosky v. Kramer, supra, 455 U.S. 754. 16 We note that the facts of this case render the trial court’s decision tantamount to a permanent deprivation of the respondent’s parental rights. Not only did the court deny reinstatement of guardianship to the respondent, but it also terminated visitation—vesting any mother-son visits in the sole discretion of the petitioner, who had a strained relationship with the respondent. As a result, the circumstances that might allow the respondent to successfully regain guardianship of Zakai are almost completely beyond her control. The effect of the trial court’s decision is to indefinitely—perhaps permanently—deprive the respondent of guardianship rights. Indeed, the trial court explicitly considered permanency as an important part of its decision. The court explained that ‘‘Zakai is screaming for permanency; he wants and needs to know his one ‘forever’ home.’’ Even if circumstances change in a manner that might warrant reinstatement, the respondent has already lost her constitutional interest in family integrity for several years. The time Zakai and the respondent will be separated will only continue to increase, further solidifying the ‘‘permanency’’ of Zakai’s arrangement with the petitioner and decreasing the chance that the respondent will be able to reinstate guardianship. As such, this case is effectively a permanent transfer of guardianship under General Statutes § 45a-616a. Significantly, to establish a permanent guardianship, the court must find by clear and convincing evidence that the establishment of a permanent guardianship is in the best interests of the child. See General Statutes § 45a-616a (a). 17 We recognize that, in this case, the trial court did take steps to increase visitation between Zakai and the respondent. Section 45a-611, however, does not require the court, the state, or the third party to take any such steps to aid in the reunification. 18 This conclusion is consistent with the legislative history of the removal statute, § 45a-610. For example, during hearings on the bill adopting the clear and convincing standard for removal of a parent as guardian, Raphael Podolsky, an attorney with the Legal Services Training and Advocacy Project, testified that the clear and convincing standard was used because the deprivation of parental rights in a temporary removal, although not permanent, could be of a substantial duration. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1983 Sess., p. 764 (‘‘Because this bill builds in a hearing provision, a temporary removal may be for a very extensive period of time. You’re not just talking [thirty] days, you may be talking months and months and months. And it seems to me when you’re talking those terms, that you really ought to be using [the] clear and convincing [standard].’’ (Emphasis added.)). Viewing the standard in terms of reinstatement, Representative Richard D. Tulisano noted the concern that a parent seeking reinstatement should not face a high standard of proof. See id., p. 757 (if parent voluntarily gives up guardianship, ‘‘[i]n order to come back and take the child back, we don’t want the parent put in a situation where they would have to show that the temporary guardian has to be removed, has to show clear [and] convincing [evidence]’’). 19 Given our conclusion that due process requires the application of the clear and convincing standard of proof, we need not address the respondent’s request that we use our supervisory authority to adopt a heightened standard of proof. 20 We recognize that there are some jurisdictions that have applied the preponderance of the evidence standard. See, e.g., In re D.I.S., 249 P.3d 775, 786 (Colo. 2011); In re Guardianship of David C., 10 A.3d 684, 686 (Me. 2010); In re Guardianship of Barros, 701 N.W.2d 402, 409 (N.D. 2005), overruled on other grounds by In re G.L., 915 N.W.2d 685 (N.D. 2018). Because we conclude that the preponderance of the evidence standard does not adequately protect the fundamental right to family integrity, we are not persuaded by these jurisdictions and decline to adopt their reasoning. 21 Although we do not take a position on whether the petitioner would be able to rebut the presumption by clear and convincing evidence, we note that Zakai’s ‘‘less than ideal behavior’’ is unfortunate but that ‘‘some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent.’’ (Internal quotation marks omitted.) Boddie v. Daniels, supra, 288 Ga. 146.

Primary Holding

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