Opinion
HHDFA186087099S
10-05-2018
Richard ROMEO, et al. v. Ferrne BAZOW
UNPUBLISHED OPINION
OPINION
Margaret Murphy, J.
Plaintiffs are the mother and stepfather of the defendant and the maternal grandparents of the defendant’s minor children. The plaintiffs brought a petition seeking visitation with their grandchildren (# 100.30). The defendant filed a motion to dismiss (# 102). The defendant’s memorandum (# 103) and reply (# 106) contend that the plaintiffs’ petition should be dismissed 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) and General Statute § 46b-59. The plaintiffs in their memorandum in opposition to the motion to dismiss argue that they are entitled to an evidentiary hearing on their petition (# 105). The court heard legal argument on September 26, 2018 on the motion to dismiss and the objection thereto. For the reasons that follow, the motion to dismiss is granted.
STANDARD OF REVIEW
A motion to dismiss is the appropriate vehicle to challenge subject matter jurisdiction in family cases.
The standard of review of a motion to dismiss is ... well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ... (Citation omitted; internal quotation marks omitted.) Fuller v. Baldino, 176 Conn.App. 451, 456-57, citing Fennelly v. Norton, 103 Conn.App. 125, 133-34, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).
DISCUSSION
In Roth v. Weston, 259 Conn. 202 (2002) our Supreme Court recognized that "[t]he constitutionally protected interest of parents to raise their children without interference undeniably warrants deference and, absent a powerful countervailing interest, protection of the greatest possible magnitude." Roth v. Weston, supra, 259 Conn. at 228.
The Roth case required the court to reconsider the parameters of General Statute § 46b-59 as then written and interpreted by the court, in light of the United States 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 in Roth 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 ..." Id. at 222.
The court in Roth next examined the second jurisdictional threshold requirement 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 Roth court held that "[i]n 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. The nature of the real and substantial harm to the child is clearly identified by the Roth court and defined by revised General Statute § 46b-59(a)(2). The harm to the child must rise to the level of neglect or abuse, not merely that the visits are in the best interest of the child. Id. at 234-35.
As indicated above, the Roth decision was codified at C.G.S. § 46b-59 by the legislature in 2012. Subsection (a)(2) of § 46b-59 defines "real and significant harm" to mean that the minor child is neglected or uncared for as those terms are defined in § 46b-120. Thus, the statute requires not simply that the harm alleged "be analogous to" the harms contemplated by § 46b-120, but must meet the definitions provided therein.
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.
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 hearing by the trial court to be in error. Id. at 139. "[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 such allegations, the court lacks subject matter jurisdiction and the petition must be dismissed. Id. 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. Id. At 460).
In the case at hand, the plaintiffs seek visitation with the defendant’s children, J. Bazow, born February 7, 2003 and R. Ashton, born October 6, 2009. In their petition, the plaintiffs checked the boxes regarding both the parent-like relationship and that the denial of visitation would cause real and significant harm to the children. The plaintiffs attached an affidavit to their petition.
By way of allegations as to the parent-like relationship, the plaintiffs allege that as grandparents they had close ties to the defendant’s children and lived with the children for much of their lives. While the petition asserts daily interactions and contact, cohabitation alone does not establish the requisite parent-like relationship. The allegations are that the plaintiffs had regular, if not daily, contact between 2003 and 2017, and the plaintiffs list examples of their activities in the children’s lives. Such interactions alone do not suffice, however, without more to meet the jurisdictional threshold. The plaintiffs’ affidavit also alleges that the defendant cut off all regular contact between the plaintiffs and the minor children sometime in mid-2017. This lack of contact for the past year practically precludes a finding of a present parent-like relationship with their grandchildren.
Even if the maternal grandparents could prevail on the first jurisdictional prong of alleging a parent-like relationship with their grandchildren, the plaintiffs fail on the second jurisdictional prong. Their petition in no way contains specific allegations of real and significant harm to their grandchildren from the lack of visitation of the type required by Roth. 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.
The plaintiffs’ petition states that the plaintiffs disagree with some of the defendant’s parenting decisions. The plaintiffs’ petition does not allege, however, that the children’s mother is unfit or that her children are neglected. Clearly, the plaintiffs themselves are hurt that they no longer have contact with their grandchildren. The grandchildren may miss regular contact with their grandparents, although this fact is not alleged. But even if, for arguments sake, the grandchildren miss their grandparents or the defendant has made parenting mistakes, this type of harm alone does not rise to the level of neglect or uncared for as contemplated by Roth or as defined in General Statute § 46b-59. The court does not question the intentions of the plaintiffs. The court decides only whether the plaintiffs have met the constitutionally mandated requirements for standing in their petition. For the reasons stated above, the court concludes that the plaintiffs lack standing. The motion to dismiss is granted.
SO ORDERED.