Opinion
No. KNO FA 08-4107444 S
October 6, 2009
MEMORANDUM OF DECISION ON MOTION FOR THIRD-PARTY INTERVENTION (#125) and MOTION FOR SPECIFIC VISITATION SCHEDULE (#126)
I. Introduction
Now before this court are paternal grandmother's motions for leave to intervene, and to be awarded visitation rights with her grandson.
Eric Wrobel and Lillie Krug (who is now known as Lillie Spearon) are the parents of Liam A. Krug, who was born on October 4, 2007. Mr. Wrobel filed an application for custody on December 31, 2007. Judgment entered on June 23, 2008, conferring joint custody upon the parents, primary residence with mother, and setting a visitation schedule for father.
The movant, Lori Ann Grove, is Mr. Wrobel's mother. Through counsel, she filed the instant motions on June 2, 2009. No preliminary challenges to her standing or to the sufficiency of her pleadings were filed, and the court has conducted a full hearing on the merits. Mr. Wrobel did not attend. Ms. Spearon appeared with counsel and opposed both motions.
II. Discussion
Since 2002 when our supreme court issued its decisions in the cases of Roth v. Weston, 259 Conn. 202 and Crockett v. Pastore, 259 Conn. 240, it is clear that a non-parent wishing to visit a child must do more than show that such visits would be in the child's best interests. Specifically, to obtain standing to argue how those interests would be affected by visitation, the grandparent must allege and prove (by clear and convincing evidence) that ". . . the petitioner 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." 259 Conn. 202, 234-5. Subsequent cases, including Denardo v. Bergamo, 272 Conn. 500 (2005), Clements v. Jones, 71 Conn.App. 688 (2002), and Fennelly v. Norton, 103 Conn.App. 125 (2007), have all reiterated that two-part test.
Here, Ms. Grove's motion for visitation makes a number of claims aimed at satisfying the pleading requirement articulated in the above cases. As to the first prong, that there is a parent-like relationship with the child, she alleges, in paragraph 5:
a) The Defendant Mother has continuously consulted with the undersigned with regard to the child's daily care, i.e.: discussing issues relative to the child's feeding habits, use or nonuse of a pacifier, use and discontinuance of a bottle for feeding, brushing teeth, schedule of napping and bowel movements;
b) The Defendant Mother has repeatedly and continuously supported the undersigned being so involved in the child's life, wherein the Defendant Mother repeatedly expresses her gratefulness for the undersigned being involved in the child's life, the stability the undersigned has provided to the child, has expressed her thankfulness for the undersigned's constant support: emotionally, physically, and financially, to the child; and the Defendant Mother repeatedly denotes to the undersigned her recognition of the bond created between the undersigned and the child;
c) The undersigned financially supports the minor child in that she pays his day care costs and other costs which equate to a child support obligation of a parent;
d) The Defendant Mother has communicated with the undersigned in a manner equivalent to that of a joint custodial arrangement for the time periods when the child is in the undersigned's care, i.e., providing schedules and logs of feedings, bowel movements, napping and daily activities;
e) The Defendant Mother has acknowledged to the undersigned, in writing, that she is "the other parent."
f) The undersigned has accompanied the Defendant Mother and the minor child on pediatric doctor appointments for the minor child.
As to the "significant harm" prong, paragraph 6 of her motion is much more succinct, and conclusory:
The denial of the Paternal Grandmother's request for visitation will cause real and significant harm to the child of a degree analogous to the kind of harm contemplated by General Statutes, Sections 46b-120 and 46b-129.
Since the court lacks subject matter jurisdiction to rule on her claims if she lacks standing to bring them, the court has listened to her testimony and reviewed her other evidence carefully to assure that she has met the required threshold of proof.
The requirement that a person in Ms. Groves' posture show a relationship "similar in nature to a parent-child relationship" demands more than a showing of a loving, caring, affinity for a child. In Fennelly v. Norton, 103 Conn.App. 125, at 131, the court held that "[t]he 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." In Hickey v. Hickey, Docket no. FA00-0162519S, Superior Court, Judicial District of Waterbury at Waterbury (Cutsumpas, J.T.R., 2008) [ 46 Conn. L. Rptr. 689], the court devised a very thoughtful checklist of factors which might lead a factfinder to conclude that a relationship akin to that of a parent has been established:
1. The parent consented to and fostered the relationship;
2. The child has lived with the third party;
3. The third party has been responsible for the daily care of the child;
4. The third party has been responsible for major decisions concerning the child's health, education, religion, and welfare;
5. The third party has provided financial support for the child; and
6. The child and the third party have established a bonded, dependent relationship.
Not all of the requirements need be present in every case, but obviously the position of the third party would be strengthened if all or most were indicated.
In order that these factors be measured in the instant case, it is important to understand how Ms. Groves came to be in the position from which she was able to perform the various tasks she alleges in her motion. Liam's parents, who never married each other nor even lived together, had only a casual relationship which had ended before their son was born in October of 2007. On December 31, of that year Mr. Wrobel filed an application seeking visitation rights for himself with Liam. This first order entered in the case occurred on January 28, 2008, when he was awarded limited visitation rights, with the agreement of the then Ms. Krug. On June 23, again by agreement, final orders were entered which among other things awarded the parents joint custody of Liam, and set forth a schedule for visits with the father.
The June agreement bears the signature of Ms. Grove on her son's behalf. He did not sign the document, and there was contradictory testimony as to whether he was even present on the occasion. Mr. Wrobel suffers from mental illness, which his mother stated included a diagnosis of bipolarity with occasional psychotic episodes. Because of his illness, he executed a general power of attorney conferring substantial authority upon her to conduct his affairs, including the power to act as his attorney in fact with respect to judicial issues. (This affliction does not impede his ability to work, and at this time he is actually holding two jobs.)
Ms. Spearon testified, credibly, that in June of 2008 she believed that Mr. Wrobel was a willing and able partner with whom to raise Liam. Because of his condition, she envisioned that Ms. Grove would play a role in Liam's upbringing, but secondary to that of either parent. For almost a year, the relationship between the two halves of Liam's family was cordial. Ms. Spearon kept a time log of the child's development, writing in it her own observations and requesting that Mr. Wrobel or Ms. Grove do the same during the time the child was in their care. She was able to confer with the paternal grandmother liberally as to questions she had, and the two often made joint trips with the child to the pediatrician. This was especially valuable as she was then somewhat estranged from her own mother, and thus particularly dependent upon Ms. Grove for the generational transfer of wisdom which long ago evolved as a principal means by which young parents become adept at their new undertaking.
As time went on, Ms. Spearon became concerned that it was the paternal grandmother, rather than the father, with whom Liam seemed to be spending most of his time when not with mother. She testified that on numerous occasions she expressed to Ms. Grove her concern that Mr. Wrobel had become an absent figure in his son's life, creating a void which grandmother happily filled albeit without mother ever having intended that turn of events. Ms. Spearon was unsuccessful in restoring Mr. Wrobel's involvement in the child's affairs. On February 20, 2009, she married Thomas Spearon. By that point, she was convinced that Mr. Wrobel was playing no active role as a parent to her son. The newlyweds began to consider whether it would be in Liam's best interests to terminate Mr. Wrobel's parental rights and simultaneously pursue a stepparent adoption. She began to cut back on the visits, believing that the cost of disrupting Liam's routine for the sake of an overnight visit with his grandmother was greater than the benefit which such visits conferred. Ms. Grove attempted a peaceful continuance of the status quo, but when those efforts failed she filed her present motions.
It is against that backdrop, and keeping in mind Judge Cutsumpas's suggested factors, that this court has weighed the evidence of the movant's "parent-like" relationship with Liam. The court finds that Ms. Grove has been an adequate and caring assistant to her son and the mother of her grandson over the last fifteen months of this child's life. She has had Liam at her home on more than forty occasions, many of them overnight. She has observed his behavior and his development, and has informed Ms. Spearon of those observations. She has conferred with mother as to Liam's needs and wants. She has accompanied mother on the child's visits to his pediatrician. She has introduced Liam to the Wrobel extended family.
Ms. Spearon has often expressed her gratitude for these courtesies. However, the court does not find that mother has willingly or consciously forfeited her own role in favor of Ms. Grove. From the testimony of both protagonists it is clear that when she gave instructions that something or other be done for Liam, Ms. Grove routinely yielded to her authority. The assertion set forth in Subparagraph 5(e) of the motion to intervene that Ms. Spearon had, in writing, acknowledged Ms. Grove as "the other parent" is disingenuous. In an email she sent on February 16, 2008 (Exhibit F), dealing generally with Liam's medical condition, Ms. Spearon implied her frustration with Mr. Wrobel's indifference and said that she was communicating with the grandmother because, by virtue of the power of attorney, he had abdicated his role to her. That limited, tortured resignation to Ms. Grove's status hardly amounts to the ringing endorsement of her quasi-parent function which she claims.
Also, subparagraph 5(c)'s claim that Ms. Grove has been financially responsible for Liam is not found true. She paid mother about $2,116 between December of 2007 and July of 2008. Until June of 2008, Mr. Wrobel was not subject to any child support order reflected in the orders in this case. The part which Ms. Grove paid after June 23 was to satisfy the order entered against him on that date; the remainder, paid when there was apparently no order outstanding, merely discharged an inchoate obligation of her son. Her generosity was for the benefit of Eric Wrobel.
All of those positive acts which Ms. Grove performed on behalf of her grandson are within the parameters of what a grandmother would do in a healthy family setting; they do not, singly or collectively rise to the level at which this court could find a "parent-like" relationship between Ms. Grove and Liam. She comes before this court with attributes similar to those alleged or in some cases found on the part of the petitioning grandparents in Roth v. Weston ("Both plaintiffs had established loving and responsible relationships with the defendant's children throughout their lives," 259 Conn. 202, 207); in Crockett v. Pastore ("maternal grandmother . . . maintained regular visits and a loving relationship with the child from the time of the child's birth . . ." 259 Conn. 240, 248); in Denardo v. Bergamo ("paternal grandparents . . . maintained a cordial relationship with [mother] and spent time with the child . . ." over a three-year period, 272 Conn. 500, 503); in Clements v. Jones ("the plaintiff and mother . . . [was a] very important [person] to the minor child . . . has had close contact with the minor child since his birth, with the child spending considerable time, including overnights, at her home . . ." 71 Conn.App. 688, 695); and in Fennelly v. Norton (". . . [Grandfather] visited [the child] on a daily basis, anywhere from fifteen minutes to several hours . . . [the child] moved into the plaintiffs' home; [grandfather] . . . would get the child ready for day care every morning during the workweek and, along with his wife and son, put her to bed at night . . . [He] also provided discipline and training for [the child], . . . afforded financial support during this time, . . . [and] . . . indicated that he also provided love . . .", 103 Conn.App. 125, 154-55). Despite those allegations or findings, grandparent-litigants in each case were deemed to have failed to allege or prove satisfactorily a parent-like relationship with the offspring of their child.
Both parties supplied this court with briefs of exceptional quality citing a number of superior court rulings which have applied the principles outlined in that set of appellate court decisions to diverse factual situations. Unfortunately for Ms. Grove, this court does not find in them any persuasive precedent for this court holding in her favor. For instance, in Hickey v. Hickey, supra, Judge Cutsumpas denied a motion for leave to intervene filed by a paternal grandmother whose interaction with her son's two young children bore striking resemblance to that of Ms. Grove with Liam, and which had endured for a substantially longer time. She had cared for the children from birth, feeding, changing, medicating, entertaining and disciplining them consulting with their pediatrician and helping them with educational matters. Measured against his six-part test set forth above, he found that even in the aggregate the many loving and caring acts which this grandmother did for these children was not an adequate counterweight to the authority of their fit parent.
More commonly, grandparents in her situation don't make it past the decision on a motion to dismiss. Thus in Ruffino v. Bottass, Docket No. FA05-4019188, Superior Court, Judicial District of Hartford (2006, Epstein, J.) [ 40 Conn. L. Rptr. 181, 41 Conn. L. Rptr. 740]; in Butler v. Butler, Docket No. FA09-4034373, Superior Court, Judicial District of New Haven (2009, Markle, J.); and in Watson v. Kasanowski, Docket No. FA09-4041690, Superior Court, Judicial District of Tolland (2009; Epstein, J.) [ 47 Conn. L. Rptr. 711], grandparents who had alleged the type of loving and caring relationship with their children's children which Ms. Grove has demonstrated were nonetheless deemed to want of standing to pursue court-ordered visits with those descendents.
The cases in which non-parent intervenors have succeeded in persuading a court that Roth and its progeny were not insurmountable barriers to what they sought all turned upon facts not found in the case at bar. In Smith v. Miller, Docket No. FA06-4022351, Superior Court, Judicial District of Hartford (2006; Dyer, J.), the court allowed the intervention of a stepmother who had actually raised the children over a period of years while their mother was temporarily incapable of doing so. That long period of their living in her care had created a bond different in kind from that which has arisen here. In Martocchio v. Savoir, Docket No. FA06-4006261, Superior Court, Tolland Judicial District (2008; Shluger, J.), the court deemed maternal grandparents to be in a parent-like relationship with their grandson after he had lived full time in their home for almost eighteen months, before his custody was conferred upon his father. Lastly, in McCorison v. McCorison, Docket No. FA07-4032877, Superior Court, Judicial District of Hartford (2009; Dyer, J.), the court awarded visitation with a young girl to the former husband of the child's mother, with whom she had had three other children and who had raised the child as his own until it was determined that he was not her biological father.
Furthermore, Ms. Grove has made no showing sufficient to satisfy the second prong of the Roth v. Weston test, requiring proof that denial of visitation will cause real and significant harm to Liam. First, her motion itself is devoid of specific allegations which meet the standard enunciated in that case, that ". . . denial of the visitation will cause real and significant harm to the child . . . [which] . . . must be a degree of harm analogous to the kind of harm contemplated by §§ 46b-120 and 46b-129 . . . [t]he 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 . . .," 259 Conn. 202, 235 (emphasis added). Paragraph 6 of her motion does no more than reiterate the first half of that standard, adding nothing that is specific to Liam's life or to the facts of this case. Although she used a manuscripted motion rather than the form provided by the Judicial Branch (Judicial Branch Form JD-FM-161), her summary allegation is the functional equivalent of "checking a box." It is indisputable that "[t]he mere act of checking a box on the application for visitation form that provides that . . . (denial of visitation would cause real and significant harm to the child(ren) . . . does not suffice for the specific, good faith allegations required by Roth . . .," Fennelly v. Norton, supra, at 140-41.
Secondly, despite grandmother's thrusts aimed at Ms. Spearon's competence as a mother, this court is satisfied that she is a fit and caring parent. She endured some tribulations in her teenage years, and was only 21 when her son was born. She has grown as a parent and there was nothing presented to this court from which it could rationally be inferred that Liam would suffer either neglect or abuse at her hands absent the intervention of Ms. Grove.
II. Conclusion and Orders
The many cases now extant on this subject must serve as cautionary tales for grandparents. Unless they can maintain such a relationship with the parents of their grandchildren that visitation with those children occurs on a voluntary basis, they face very difficult odds in convincing a court to allow such visits over the opposition of the parents. This court has no doubt that Ms. Grove loves Liam and has made sacrifices for his benefit. Ms. Spearon is a fit parent, though, and in that role enjoys a cordon of constitutionally protected discretion within which to raise her children. Ms. Grove has neither alleged nor proven facts sufficient to breach that cordon, and thus the potential that Liam would in fact benefit from having a relationship with her cannot be realized through judicial action.
Accordingly, Ms. Grove's motion for leave to intervene is denied for lack of standing, and her motion for specific visitation schedule is, therefore, also denied.