Opinion
LLIFA186018360
08-22-2018
Elissa BUONINCONTRI et al. v. Tracy TRIPLER et al.
UNPUBLISHED OPINION
OPINION
Kari A. Dooley, Judge
Plaintiffs are the maternal grandparents of the defendants’ minor children. They brought this visitation application seeking visitation with the children. The defendant parents filed a motion to dismiss for lack of subject matter jurisdiction pursuant to the jurisdictional thresholds set forth by our Supreme Court in Roth v. Weston, 259 Conn. 202 (2002) as later codified at C.G.S. § 46b-59. The defendants aver that the allegations in the application do not meet the Roth standard to confer standing upon the plaintiffs. The plaintiffs object and aver that the allegations are adequate under the law. For the reasons that follow, the motion is GRANTED.
Standard of Review
A motion to dismiss is the appropriate procedural mechanism to challenge subject matter jurisdiction in family cases. Simms v. Simms, 89 Conn.App. 158, 163 (2005). "The plaintiff bears the burden of establishing subject matter jurisdiction, whenever and however, raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13 (1996). In deciding a motion to dismiss, the court accepts the facts alleged in the complaint, to include those facts necessarily implied from the alleged facts, and construes them in favor of finding jurisdiction. Conboy v. State, 292 Conn. 642, 651 (2009).
Discussion
Standing implicates the court’s subject matter jurisdiction. Roth v. Weston, 259 Conn. 202, 219 (2002) "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." Sadloski v. Manchester, 228 Conn. 79, 84 (1993).
In Roth v. Weston, supra, our Supreme Court determined the constitutionally mandated prerequisites for a plaintiff in a visitation application to establish standing where that plaintiff seeks visitation with a child against the will of a child’s fit parent. The Roth court also established the constitutional parameters of the substantive proof required in order to prevail on such an application as well as the standard by which such proof must be measured. Id., passim . Implicated by this motion is only the constitutionally mandated threshold requirements for standing, and therefore this court’s subject matter jurisdiction.
The Roth case required our Supreme Court to reconsider the parameters of C.G.S. § 46b-59 as then written and interpreted by the Court, in light of the United State Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000). As preface to its analysis, the Roth Court wrote:
Building on a long line of cases acknowledging the fundamental right of parents to raise their children as they see fit, Troxel teaches that courts must presume that "fit parents act in the best interests of their children," and that "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children." Id., at 68-69, 120 S.Ct. 2054. Moreover, Troxel confirms that among those interests lying at the core of a parent’s right to care for his or her own children is the right to control their associations. Id. The essence of parenthood is the companionship of the child and the right to make decisions regarding his or her care, control, education, health, religion and association. Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (noting that liberty interest includes rights of parents to establish home, bring up children and control education).Id. at 216-17. Thereafter, the court undertook an analysis of the jurisdictional prerequisites to standing, "that is, which person may intrude upon a parent’s autonomy." Id. at 219. "Where fundamental rights are implicated, such as in the present case, standing serves a function beyond a mere jurisdictional prerequisite. It also ensures that the statutory scheme is narrowly tailored so that a person’s personal affairs are not needlessly intruded upon and interrupted by the trauma of litigation." Id. The Court concluded that the first jurisdictional requirement of standing is that the person seeking visitation "must allege ... a parent-like relationship [with the children] in order to pass constitutional muster."
The Court next examined the jurisdictional threshold requirements that would permit the state to interfere with the fundamental right of parents to raise their children and make decisions for their children as they see fit. The Court’s analysis led it to conclude that "an allegation ... that the parent’s decision regarding visitation will cause the child to suffer real and substantial emotional harm" presents a sufficiently compelling state interest so as to permit state interference, assuming of course, adequate allegations regarding the parent-like relationship are made. Id. at 226. Indeed, the Court held that "[in the absence of a threshold requirement of a finding of real and substantial harm to the child as a result of the denial of visitation, forced intervention by a third party seeking visitation is an unwarranted intrusion into family autonomy." Id. at 229.
Finally, in discussing the threshold pleading requirements, the Roth court held:
First, the petition must contain specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship. The petition must also contain specific, good faith allegations that denial of the visitation will cause real and significant harm to the child. As we have stated, that degree of harm requires more than a determination that visitation would be in the child’s best interest. It must be a degree of harm analogous to the kind of harm contemplated by § § 46b-120 and 46b-129, namely, that the child is "neglected, uncared-for or dependent." The degree of specificity of the allegations must be sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation. Only if these specific, good faith allegations are made will a court have jurisdiction over the petition.Id. at 234-35.
As indicated above, the Roth decision was codified at C.G.S. § 46b-59 by the legislature in 2012. Therein "real and significant harm" means that the minor child is neglected or uncared for as those terms are defined in section 46b-120. Thus, the statute requires not simply that the harm alleged "be analogous to" the harms contemplated by section 46b-120, but must meet the definitions provided therein.
In Fennelly v. Norton, 103 Conn.App. 125, cert. denied, 284 Conn. 918 (2007), our appellate court had occasion to explore the procedural implications and requirements arising out of the Roth holding. There, the trial court conducted an evidentiary hearing, to include testimony from the plaintiffs, in determining the defendant’s motion to dismiss. The appellate court found this to be error. "[W]hen faced with ... a jurisdictional challenge, the court should simply ‘examine the allegations of the petition and compare them to the jurisdictional requirements set forth [in Roth ].’ "Id. at 138, quoting Roth v. Weston, 259 Conn. at 235. "Roth could not be more clear in its requirement that a nonparent must allege in the application for visitation ‘specific, good faith allegations’ that the nonparent has a relationship with the child that is similar in nature to a parent-child relationship and that denial of the visitation will cause real and significant harm to the child." Id. at 140, quoting Roth v. Weston, 235 Conn. at 234-35. In Fennelly, the plaintiff had not provided any specific allegations as to either jurisdictional prerequisite. "The mere act of checking a box on the application for visitation form" containing the conclusory prerequisites "does not suffice for the specific, good faith allegations required by Roth ." Id. at 140-41.
"In fashioning what it termed ‘admittedly high’ and ‘constitutionally mandated’ hurdles; ... Roth sought to safeguard against unwarranted intrusions into a parent’s authority." (Internal citation omitted.) Id. at 142. "Accordingly, when faced with a motion to dismiss an application for visitation, the trial court is required under Roth to scrutinize the application and to determine whether it contains specific, good faith allegations of both relationship and harm." Id. Absent same, the court lacks subject matter jurisdiction and the application must be dismissed. Id.
Here, the plaintiffs seek visitation with B. Tripler, born May 8, 2004 and S. Tripler, born January 31, 2007. In their application, they checked the boxes regarding both the parent-child relationship and real and significant harm. By way of allegations as to the parent-child relationship the plaintiffs allege: "From 2008 until 2011 we all lived in the same house. After 2011 until 2015, I talked to my grandchildren almost daily and we saw each other constantly. Prior to our time with the children being cut off, we had an extremely close relationship." By way of allegations as to harm in the event visitation is denied, the plaintiffs allege: "The respondents have taken the children out of school and they are being home schooled. The children are isolated, away from their friends and family. In 2015, for no apparent reason, the respondents cut off regular contact between myself, my husband and our grandchildren."
Even under a broad and liberal reading of the allegations, the application does not satisfy the "admittedly high" and "constitutionally mandated" jurisdictional prerequisites. These allegations simply do not provide the "degree of specificity ... sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation." Roth v. Weston, supra, 235.
The application is silent as to the interactions between the children and the plaintiffs during the time that they "all lived in the same house." While the court infers regular if not daily interactions and contact, cohabitation alone does not establish the requisite parent-child type of relationship. The allegations of almost daily contact and "constant" personal interactions between 2011 and 2015 as well as the allegation that the relationship was "extremely close" are relevant and probative of such a relationship but do not suffice, without more, to meet the jurisdictional threshold. And although appearing elsewhere in the application, the allegation that the defendants cut off all regular contact between the plaintiffs and the minor children since an unknown date in 2015, all but precludes a finding of a present parent-like relationship with the children.
Similarly, the allegations regarding real and significant harm are lacking. The defendants’ decision to home school the children contributes nothing to the harm analysis. Nor does the fact that the defendants cut off regular contact between the plaintiffs and the children in 2015 establish harm to the children in the event visitation is denied in the future. As noted by the Roth court: "In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance." Roth v. Weston, supra, at 229, quoting Troxel v. Granville, 530 U.S. at 70. Finally, the allegation that the "children are isolated, away from their friends and family" expresses a concern for the children’s current circumstances, but simply does not implicate the type of "neglect" or lack of care contemplated under section 46b-120. See also, Fuller v. Baldino, 176 Conn.App. 451 (2017) (Allegation that the child "suffers" and is "very emotional" when unable to see the plaintiff does not rise to the level of neglect, abuse or abandonment as required. Nor is such an allegation sufficiently specific to satisfy the Roth requirements).
The court does not question the intentions of the plaintiffs or opine on the legitimacy of their concerns. The court decides only whether the plaintiffs’ have met the constitutionally mandated requirements for standing. Insofar as they have not, the motion to dismiss is GRANTED.