Opinion
No. FA 05-4019188S
February 10, 2006
MEMORANDUM OF DECISION ON DEFENDANT KENNETH BOTTASS' MOTION TO DISMISS
Background
The captioned matter is an application for visitation, pursuant to C.G.S. Sec. 46b-59. The maternal grandparents seek a court order mandating the parents of their two granddaughters to permit regularly scheduled visits with the children, who are presently three and five years old. Respondent father has moved to dismiss the application based on a claim of applicants' failure to meet the threshold jurisdictional requirements mandated by the Connecticut Supreme Court in Roth v. Weston, 259 Conn. 202 (2002). Respondent mother took the position, at oral argument and through her counsel, that she is in support of the grandparents' application.
The complaint alleges the following: Since June of 2000, the applicants have been surrogate parents, providing care, clothing, shelter, food, attention, nurturing and protection on a daily or almost-daily basis. (At oral argument, the parties explained that this was in the way of daycare, and that the mother or father or both would be with the children at other times). In the summer of 2004, the Connecticut Department of Children and Families (DCF) sought and obtained orders of temporary custody, premised on allegations of neglect because of significant and longstanding drug abuse on the part of the parents, and the children were placed with the grandparents, with whom they lived from June of 2004 through July 2005. On July 28, 2005, the children were returned by DCF to the father, under conditions which included overnight visitation with the grandparents every other weekend. The parents' marriage was dissolved in October 2004, and the court granted joint legal custody to the parents pending resolution of the neglect petition filed by DCF. The complaint further alleges that the father has now been granted sole custody, however, at oral argument on the Motion to Dismiss, the parties stipulated that the parents presently have joint legal custody. At oral argument, the parties also revealed that the mother has not visited with her daughters since last June.
Discussion
A motion to dismiss is the appropriate vehicle to address the issue of the court's personal or subject matter jurisdiction. Blumenthal v. Barnes, 261 Conn. 434, 442 (2002); Labow v. Labow, 171 Conn. 433, 436-37 (1976); Practice Book Sec. 25-13(a)(2). A motion to dismiss admits all well-pleaded facts, and the complaint is construed most favorably toward sustaining jurisdiction. American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217 (1983).
While C.G.S. Sec. 46b-59 provides a potential mechanism for a court-ordered visitation of minor children by "any person" the statute has been interpreted narrowly in light of parents' constitutional rights vis-a-vis their children. The right to family autonomy and privacy is well established in the common law and, indeed, has been recognized as so entrenched and fundamental as to warrant constitutional protection. Castagno v. Wholean, 239 Conn. 336, 344 (1996). In Castagno, the Connecticut Supreme Court held that a trial court does not have subject matter jurisdiction to entertain a petition for visitation under C.G.S. Sec. 46b-59 unless, as a threshold matter, there is a demonstration of an already existing family disruption sufficient to justify state intervention.
C.G.S. Sec. 46b-59. The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon application of such person. Such order shall be according to the court's best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.
Thereafter, in reviewing a similar statute from the state of Washington, the United States Supreme Court devised an even stricter standard. In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the nation's high court held that the federal constitution does not permit the state to interfere with the fundamental right of parents to rear their children based on an asserted claim of best interests of the child and the Supreme Court set forth some preliminary requirements in recognition of the presumption that a parent is fit and is acting in the best interests of the child. In Troxel, the United States Supreme Court held that unless there is a finding of parental unfitness, a court must give special weight to a parent's determination of the child's best interests. Again, the Troxel holding is premised on the parents' right to family integrity — the fundamental right of parents to make decisions concerning the care, custody and control of their children and the presumption following therefrom that parents act in their childrens' best interest.
After Troxel, the Connecticut Supreme Court revisited this issue in Roth v. Weston, 259 Conn. 202 (2002). As in Castagno and Troxel, Roth involved the petition of grandparents for visitation with their grandchildren. In Roth this state's high court first recognized the "standing" requirements of the visitation statute — the petitioner must have a "parent-like relationship" with the child. Roth, supra, 259 Conn. at 221. The second jurisdictional factor enunciated by the Roth court is an allegation and proof that the child will suffer real and substantial emotional harm without the requested visitation. Id., 259 Conn. at 226. There are two requirements that must be satisfied in order for a court to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent. The first is the allegation of a parent-child relationship, and the second is the allegation that denial of visitation will cause real and significant harm. Id., 259 Conn. at 234-35. "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." Id., 259 Conn. at 235. It cannot go unnoted that "the best interests of the child" is not the measure in this matter, and that, even if the "best interests" factor were established, that will not permit the requested visitation over the fit parent's objection.
Once these jurisdictional hurdles have been overcome the petitioner must then prove these allegations by clear and convincing evidence in order for the visitation to be permitted under C.G.S. Sec. 46b-59.
In Roth, as in the instant case, the applicants had established a close relationship with the minor children. Indeed, the guardian ad litem for those minor children concluded that it was imperative that Ms. Roth and Ms. Campbell (maternal grandmother and maternal aunt) continue to have a regular relationship with the children. Id., 259 Conn. at 209. In Roth as has been alleged in the instant case, the father had demonstrated a "hostile" attitude toward the applicants.
The complaint in the instant matter does set forth a recital that the two Roth requirements exist in this case. However, Connecticut is a fact-pleading jurisdiction, Practice Book Rule 10, and Roth requires that the claims be supported by specific factual allegations. As to the first prong of the Roth test, plaintiff's specific allegations as to the existence of a parent-like relationship suffice to withstand a motion to dismiss. However, as to the second prong of Roth, applicants provide only conclusory, non-specific allegations that the children will suffer real and significant harm, and they have not set forth a basis for the necessity of court intervention. The mandates of Roth are stringent on this issue:
Indeed, the only level of emotional harm that could justify court intervention is one that is akin to the level of harm that would allow the state to assume custody under General Statutes Secs. 46b-120 and 46b-129 — namely, that the child is "neglected, uncared-for or dependent" as those terms have been defined.
Roth, 259 Conn. at 226
The applicants contend that it would be in the best interests of their grandchildren for them to have access and visitation on a regular and liberal basis, and that very well may be. However, under the governing law, neither they, nor this court, may interfere with a fit parent's decision-making as to what will serve the best interests of the children.
The constitutional issue, however, is not whether the children should have the benefit of relationships with persons other than their parents or whether a judge considers that a parent is acting capriciously. In light of the compelling interest at stake, the best interests of the child are secondary to the parents' rights.
Roth, 259 Conn. at 233.
In this case, we have very unfortunate circumstances in which, because of the aberrant behavior of the parents of two little girls, two generous and caring grandparents devoted themselves to providing a loving and protected shelter and haven for their granddaughters. The parties now find themselves in a position in which at least one of the parents has made significant efforts in setting his life straight, has taken over the responsibilities of parenthood, and is apparently trying to make the best decisions he can to provide for the children.
The competing interests in a situation such as this are beyond comprehension and one cannot help but consider the invocation of the wisdom of King Solomon. However, the law has provided a great deal of guidance in this matter, and has entrusted a fit parent with a great deal of trust. We can all hope, in each instance, that this trust will not be betrayed, and that fit parents will recognize that, among other things, the concept that "it takes a village to raise a child" is in accord with, and not contrary to, good parenting.
For all of the foregoing reasons, the motion to dismiss is granted.