Opinion
19-P-1828
12-17-2020
ROBERT TAVERNA & another v. KARLA TAVERNA & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs (grandparents) filed a petition pursuant to G. L. c. 119, § 39D, seeking visitation rights with their granddaughter (child). On the mother's motion, a judge of the Probate and Family Court dismissed the petition under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), for failure to satisfy the pleading standards set forth in Blixt v. Blixt, 437 Mass. 649, 665-666 (2002), cert. denied, 537 U.S. 1189 (2003). We affirm.
The father appeared pro se at the hearing on the motion to dismiss and stated that he supported the mother's position. He has not filed a brief on appeal.
"To accord with due process, an evaluation of the best interests of the child under [G. L. c. 119, § 39D,] requires that a parental decision concerning grandparent visitation be given presumptive validity." Blixt, 437 Mass. at 657-658. A grandparent must rebut this presumption in order to obtain court-ordered visitation, by showing "that the failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare." Id. at 658. "The requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child." Id.
The Blixt court went on to hold that, even in the absence of a significant preexisting relationship, a grandparent may obtain visitation by showing that it is "necessary to protect the child from significant harm." Blixt, 437 Mass. at 658. Here, the grandparents' petition claimed a right to relief under the first prong of Blixt; that is, it alleged the existence of a significant preexisting relationship.
Because full litigation of a grandparent visitation complaint "can itself be 'so disruptive of the parent-child relationship'" as to implicate the parent's constitutional rights, the complaint must "make an initial showing that satisfies a judge that the burden of proof . . . can be met." Blixt, 437 Mass. at 666, quoting Troxel v. Granville, 530 U.S. 57, 75 (2000). To that end, the complaint must "be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief." Blixt, supra. The allegations of the complaint or affidavit must be "facially sufficient to rebut the presumption of parental fitness" in order to survive dismissal under Mass. R. Civ. P. 12 (b) (6). Sher v. Desmond, 70 Mass. App. Ct. 270, 281 (2007). Accord Martinez v. Martinez-Cintron, 93 Mass. App. Ct. 202, 204 (2018). In addition, viewed in light of the pleading standards of Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), the allegations must plausibly suggest, not merely be consistent with, a right to relief. See Frazier v. Frazier, 96 Mass. App. Ct. 775, 778-779 (2019).
We review the order of dismissal de novo. See Frazier, 96 Mass. App. Ct. at 777. The grandparents' affidavits allege the following facts: The mother and the child lived in the grandparents' home in Centerville from 2009 (when the child was seven months old) until 2013, during which time the grandparents helped care for the child on a daily basis. In 2013 the mother and the child moved out of the grandparents' home and into the Abington home of the mother's fiancée, where they lived until 2016. During that three-year period, the grandparents visited with the child at least once per week. In August 2016 the mother and the child moved back into the grandparents' home, but moved out again three months later. For the next year, the grandparents continued to see the child, babysitting her and regularly attending her extracurricular activities; following an argument in November 2017, however, the mother prohibited further visits. The grandparents then reached out to the father, who allowed them to see the child approximately once per month until November 2018, when the father also prohibited further visits. As of the filing of the petition, the grandparents had not seen the child for approximately seven months.
Accepting these allegations as true, we conclude that they do not plausibly suggest that there is a significant preexisting relationship between the grandparents and the child, such that it can be inferred that significant harm will befall the child without court-ordered visitation. The relationship since 2013 -- excepting the three-month period in 2016 when the child lived in the grandparents' home -- was "a not uncommon one between grandparent[s] and children," consisting of visits, holidays together, babysitting, and extracurricular activities. Dearborn v. Deausault, 61 Mass. App. Ct. 234, 238 (2004). "[W]hile meaningful and nurturing," this "is not the kind of relationship from which significant harm to the children may be inferred from disruption alone." Id. Furthermore, the grandparents saw the child only sporadically since November 2017 and not at all since November 2018. The allegations of the petition are thus inadequate to plausibly show that the grandparents can meet their burden of proof under Blixt. See Frazier, 96 Mass. App. Ct. at 778-779 (grandparent visitation petition failed to state claim for relief where relationship "consist[ed] of shared meals, visits, vacations, and holidays and include[d] providing access to extracurricular activities").
We reject the grandparents' contention that the judge erred by converting the motion to dismiss into one for summary judgment. The judge properly considered the grandparents' affidavits, and indeed was required to do so, under Blixt. We also see no merit to the grandparents' claim that the judge "effectively applied the summary judgment standard," rather than the pleading standards of Iannacchino, which the judge cited in her decision. In any event these arguments are of no consequence because we have reviewed the judge's order de novo and conclude that the petition was correctly dismissed under Mass. R. Civ. P. 12 (b) (6).
We see nothing in the judge's decision to suggest that she considered the mother's affidavit, submitted in opposition to the grandparents' motion for temporary orders. To the contrary, it is clear that the judge confined her review to the grandparents' affidavits, as reflected in her accepting the grandparents' version of what occurred during their argument with the mother in November 2017.
Judgment affirmed.
By the Court (Green, C.J., Sullivan & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 17, 2020.