Opinion
No. FA-10-4009642-S
June 29, 2011
The parties came before the court on May 31, 2011, for a hearing on four motions. However, the parties agreed that the court should address all four motions without a hearing. The motions are: defendant Joy Banach's ("Joy Banach") motion to dismiss (#127); plaintiff Jack Tyndall's ("the plaintiff") motion for the appointment of a guardian ad litem for the minor child (#114); the plaintiff's motion for the entry of orders regarding the disclosure and use of certain official records (#113); and the plaintiff's motion to continue the trial (#135).
The court has considered the pleadings submitted by all parties that support and oppose the various motions. The motion to dismiss (#127) is denied. The motion for appointment of a guardian ad litem (#114) is granted. The motion regarding official records (#113) is granted in that the records at issue will be released to the court and the guardian ad litem. The motion to continue the trial (#135) is granted.
Defendant Joy Banach's motion to dismiss (#127) and memorandum of law (#132) which also responds to the plaintiff's motion for orders regarding official records and for appointment of a guardian ad litem; the plaintiff's objection to the motion to dismiss (#130) and memorandum of law in opposition to the motion to dismiss (#131); the plaintiff's motion for appointment of a guardian ad litem (#114) and memoranda of law regarding appointment of a guardian ad litem (##126, 134); plaintiff's motion for orders regarding release of records (#113) and memorandum of law regarding release of records (#133), defendant Joy Banach's memorandum of law opposing the release of records (#132); her supplemental memorandum of law regarding release of records (#136) the plaintiff's reply memorandum regarding release of records (#137); and the plaintiff's motion to continue the trial (#135).
FACTS
The plaintiff, Jack Tyndall, is the eighteen-year-old son of Wendy Darasz and Mark Tyndall, Sr., who were married on November 30, 1991, and divorced on January 3, 1995. Joy Banach married Mark Tyndall, Sr., on December 6, 2001. Their child (the plaintiff's half-brother), Mark "Max" Tyndall, Jr., ("Max") was born on March 8, 2003. Joy Banach and Mark Tyndall, Sr. were divorced on April 7, 2005.
Mark Tyndall, Sr., passed away on October 25, 2009. The Department of Children and Families was allegedly involved in Joy Banach's care of Max. The plaintiff claims that on June 2, 2009, Joy Banach entered a nolo contendere plea to an allegation of neglect for permitting Max to live under conditions injurious to his well being. On that same day, guardianship of Max was transferred to his maternal grandparents, defendants Josephine and Karl Banach. The plaintiff claims that in August 2009, the guardians returned Max to his mother, and in February 2010, Joy Banach moved to Colorado where Max resides with her.
Karl Banach filed a notice on January 28, 2011, advising the court that defendant and co-guardian Josephine Banach passed away on January 8, 2011.
PROCEDURAL HISTORY
On April 28, 2010, the plaintiff filed a motion for visitation with his half-brother. On May 24, 2010, defendants Karl and Josephine Banach moved to dismiss the petition, challenging the court's subject matter jurisdiction. At that point, Joy Banach had not filed an appearance in the case. The motion was based on the defendants' belief that this case is subject to the jurisdictional prerequisites of Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002), and that the plaintiff cannot meet those prerequisites.
In a memorandum of decision dated July 13, 2010, the Honorable John W. Pickard denied the motion, finding that the jurisdictional prerequisites of Roth do not apply in this case. Judge Pickard recognized that Roth was our Supreme Court's response to the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 63, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), a case in which the Supreme Court found unconstitutional a Washington state statute that allowed "any party" to petition for visitation rights with a fit parent's minor children. Connecticut General Statutes § 46b-59, like the Washington state statute, allows the court to grant the right of visitation with respect to any minor child to "any person" upon application of such person who can otherwise meet the requirements of General Statutes § 46b-59.
Judge Pickard noted, in particular, that in Troxel there was no finding that the mother was an unfit parent. Troxel v. Granville, supra, 530 U.S. 68. Judge Pickard recognized that, like the situation in Troxel, there was no suggestion in Roth that the surviving parent was unfit. Judge Pickard concluded that the jurisdictional prerequisites of Roth do not apply when a child's guardian is someone other than a parent. Judge Pickard concluded that the fact that Max's guardians are his grandparents, despite the fact that the child lives with his mother, implies that "the family's integrity has already been breached and the constitutional underpinnings of Roth v. Weston do not apply." (Citation omitted; internal quotation marks omitted.) Tyndall v. Banach, Superior Court, judicial district of Litchfield, Docket No. FA 10 4009642 (July 13, 2010, Pickard, J.) ( 50 Conn. L. Rptr 386, 388). Judge Pickard noted, further, that the plaintiff's petition alleges that Joy Banach is not a fit parent; Roth, however, is based on the presumption that fit parents act in their children's best interests.
The court notes that Judge Pickard's decision was questioned in In re Andrew C., Superior Court, judicial district of Hartford, Docket No. H12CP11013647 (April 19, 2011, Keller, J.). In In re Andrew C. the court stated that Judge Pickard's decision in this case is "somewhat troubling," since it implies that, for example, grandparents who have assumed the guardianship of their grandchildren may have to defend against claims for visitation from any "third party" including, potentially, "the neighborhood pedophile," and they would have to do so in a full evidentiary hearing. Id. n. 11. The latter concern does not seem to take into account the fact that Judge Pickard's decision did not merely rely on the fact that the minor child was under the supervision of guardians; it also recognized that in this case the plaintiff alleges that the child's mother is unfit. See discussion, infra. The Roth jurisdictional requirements appear to be less a sword intended to defeat an unworthy application for visitation than a shield intended to protect a presumptively fit parent from an unwarranted intrusion. Once standing is found to exist, with or without the application of the Roth prerequisites, General Statutes § 46b-59 imposes requirements that the applicant must meet before the application can be granted.
On April 20, 2011, Joy Banach filed an appearance in this case. She filed her motion to dismiss on May 9, 2011, and the plaintiff objected on May 26, 2011.
DISCUSSION 1. The Motion To Dismiss (#127)
The United States Supreme Court specifically found that "the Troxels did not allege and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children." (Emphasis added.) Troxel v. Granville, supra, 530 U.S. 68 (2000). The Troxel court held, further, 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. 68-69. Turning to our Supreme Court's response to Troxel, it is clear that Roth was directly responsive to the Troxel court's concern regarding applications for visitation burdening a family where the parent or parents are presumed to be fit. "[W]e conclude that, in light of the presumption of parental fitness under Troxel, parents should not be faced with unjustified intrusions into their decision-making . . ." (Emphasis added.) Roth v. Weston, supra, 259 Conn. 221.
Joy Banach claims that that the allegations in the plaintiff's application, even viewed in the light most favorable to the plaintiff, "are extremely sparse." Moreover, Joy Banach contends that the requirements of Roth do apply because, she claims, she is a "fit parent capable of determining the choice of social contacts of her child . . ." She claims that she is not currently the subject of any state inquiry into her fitness as a parent. Joy Banach claims that the application does not allege that she is "currently" unfit and therefore Roth does apply.
Joy Banach also asserts in her memorandum that General Statutes § 46b-59 is unconstitutional as applied to this case but offered no analysis to support this claim. The court therefore treats this claim as having been abandoned. "We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Taylor v. Mucci, 288 Conn. 379, 383 n. 4, 952 A.2d 776 (2008).
The plaintiff, in reply, asserts that Joy Banach was found guilty of neglect. The plaintiff claims that Joy Banach was hospitalized at least eleven times for alcohol-related treatment and that she attended alcohol rehabilitation on repeated occasions. According to the plaintiff, this case is in the same factual and procedural posture that pertained when Judge Pickard denied the defendant grandparents' motion to dismiss almost one year ago. The plaintiff argues that the fact that the parent has filed an appearance and is the current movant is not a material change in fact or in law. He notes that Judge Pickard recognized, in his decision, that Joy Banach is allegedly an unfit parent.
The court agrees with the plaintiff that the reasoning that led to Judge Pickard's decision is at least equally applicable to the instant motion. The present posture of this case is one in which, first, the mother of the minor child was allegedly found to be unfit and there have been no subsequent findings by any entity relative to that issue. Second, the father of both the plaintiff and the minor child is deceased. Third, subsequent to Judge Pickard's ruling, one of the two guardians appointed for the child died. Fourth, shortly after the mother of the child was found to be unfit she took the minor child to live with her and, thereafter, the mother and the minor child relocated to Colorado. Thus, the surviving guardian appears to be a guardian in name only. All of the foregoing allegations combine to establish that the central underpinning of Troxel is not in play: the family unit in this case has been grievously disrupted. The plaintiff has sufficiently alleged that the presumption of parental fitness is not to be found in this case. There is a legitimate question as to whether it is in the best interest of the minor child to be separated from his half-brother, particularly in light of the death of the one parent that both children had in common.
The plaintiff's allegations are sufficient to overcome the presumption of parental fitness that otherwise exists and so the constitutional concerns addressed in Troxel are not at issue. Consequently, since the Roth requirements are in direct response to Troxel's due process concerns and those concerns are not present in this case, this plaintiff need not meet the Roth jurisdictional prerequisites.
Indeed, even if there were no suggestion that the minor child's mother is unfit, a serious question arises as to whether our Supreme Court intended the Roth requirements to apply to a situation in which the party applying for visitation is a sibling, related by blood to the minor child with whom the applicant seeks visitation. The first jurisdictional prerequisite in Roth is that "any third party" including a grandparent or a great-grandparent, seeking visitation must allege and establish a parent-like relationship as a jurisdictional threshold in order both to pass constitutional muster and to be consistent with the legislative intent." Roth v. Weston, supra, 259 Conn. 222. In both Troxel and Roth, the applicants were adults. Here, the applicant is a brother who was, until recently, himself a minor. It will be the rare case in which a sibling will be able to establish a "parent-like relationship" with another sibling. General Statutes § 46b-59 obviously contemplates applications for visitation by siblings. Further, albeit in another context, our legislature has expressed a specific intent to give a voice to siblings who wish to have visitation with a child who has been committed to the Department of Children and Families. See General Statutes § 46b-129(p); General Statutes § 17a-10a(c). Thus, Roth attempts to be consistent with legislative intent yet appears to create a barrier to visitation that most siblings will not be able to overcome. However, in view of this court's determination that the Roth jurisdictional requirements do not apply in this case, it is not necessary to decide whether our Supreme Court did in fact intend to set such a high jurisdictional barrier in cases involving sibling applications for visitation.
This court has subject matter jurisdiction over the plaintiff's petition. The motion to dismiss (#127) is denied.
2. Motion for Appointment of Guardian Ad Litem (#114)
The plaintiff moved this court for the appointment of a guardian ad litem ("GAL") to represent the best interests of the minor child, Max Tyndall. The plaintiff claims that this is a case in which the minor child was the subject of extensive involvement by the juvenile court and by the Department for Children and Families. The minor child is currently under the care of a legal guardian who resides in Connecticut, but the minor child is residing in Colorado. The defendant claims that General Statutes § 46b-54(a) does not give this court authority to appoint a GAL because this case is a "non party visitation matter, in which the only issue is whether the surviving parent's decision" regarding visitation should be permitted between the minor child and his half-brother. The defendant contends that the court may only appoint a GAL in "cases involving a complaint under section 46b-45."
The plaintiff filed two memoranda in support of his motion for the appointment of a guardian ad litem (##126, 134). The defendant filed a memorandum in opposition (#132).
The defendant fails to consider General Statutes § 46b-54(b), which provides, in relevant part, that "[c]ounsel for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy . . ." (Emphasis added.) General Statutes § 46b-54(a) provides that counsel may be appointed at the request of, inter alia, "any child [of either or both parties] who is of sufficient age and capable of making an intelligent request."
The plaintiff is no longer a minor and so is presumed capable of making "an intelligent request" for appointment of counsel for the minor child. This is a case involving a controversy over visitation with the minor child. The history of the litigation regarding the minor child, and the foregoing conclusions, all combine to make it appropriate for the appointment of a GAL in this case. See Schaeffer v. Schaeffer, 187 Conn. 224, 224-25 n. 1, 445 A.2d 589 (1982).
The motion for appointment of a guardian ad litem is granted (#114). The parties will, within two weeks of this ruling, submit the names and addresses of three proposed guardians ad litem to the clerk of the court. The parties will provide a courtesy copy of their submissions directly to this court.
3. Motion for Orders Regarding the Release of Records (#113)
The plaintiff seeks orders regarding the disclosure and use of records maintained by the Juvenile Court and/or the Department of Children and Families regarding Max Tyndall, Joy Banach, Josephine Banach and Karl Banach. The plaintiff bases his motion on General Statutes § 46b-124(b) which provides that records of cases in juvenile proceedings are confidential and are open to inspection "only upon order of the Superior Court . . ." Further, General Statutes § 17a-28(f)(4) provides that records maintained by the Department of Children and Families may be disclosed to a GAL.
The plaintiff accompanied his motion with a memorandum of law (#133). The defendant opposed the motion in her memorandum regarding the motion to dismiss, for release of records, and for appointment of a GAL (#132). She thereafter filed a supplemental memorandum of law (#136). The plaintiff replied to the latter memorandum (#137).
Joy Banach opposes the motion, arguing that the plaintiff's request "is not limited in scope or in time, and seeks free license to peruse the entirety of these records for any information available to criticize the mother." Joy Banach also argues that the court must balance the presumption of confidentiality against the need for disclosure. According to Joy Banach, the plaintiff must first prove "the existence, if any, of his relationship with Max" in order to obtain the visitation he seeks. Therefore, Joy Banach contends, information regarding her is irrelevant.
The plaintiff made clear that he is willing to enter into a confidentiality agreement regarding the records that are at issue. Such an agreement, he implies, is an appropriate vehicle through which the parties can strike a balance with regard to the need for disclosure of relevant records in order to address the issues before the court while, at the same tune, ensuring that confidential records are not publicly disseminated.
In her supplemental memorandum of law Joy Banach contends that her earlier memorandum, arguing that the court should balance the presumption of confidentiality against the need for disclosure, was inaccurate. She now contends that no such balancing is permitted, citing Falco v. Institute of Living, 254 Conn. 321, 757 A.2d 571 (2000). She argues that confidential records can only be disclosed pursuant to statutorily provided exceptions.
The court finds that the records of juvenile matters pertaining to Max Tyndall and Joy Banach, as well as Karl and Josephine Banach, are relevant to the question of whether the visitation sought by the plaintiff is in the best interests of the minor child. General Statutes § 46b-124(b) permits the disclosure of such records upon order of the superior court. In re Sheldon G., 216 Conn. 563, 576, 583 A.2d 112 (1990). The plaintiff has demonstrated a compelling need for the disclosure of the requested records at least, in the first instance, to the court for an initial review of those records. The court orders that the foregoing records be disclosed to the court for review and, if necessary, to be thereafter disclosed to the parties subject to an appropriate confidentiality agreement or order.
The court finds that the records maintained by the Department of Children and Families are also relevant to the question of whether the visitation sought by the plaintiff is in the best interests of the minor child. Such records may be disclosed to a GAL pursuant to General Statutes § 17a-28f(4). Therefore, the foregoing records will be disclosed to the GAL who is ultimately appointed in this case and, if necessary, will be thereafter disclosed to the parties subject to an appropriate confidentiality agreement that has been reviewed and approved by this court.
4. Motion for Continuance
In view of the foregoing rulings, particularly the need for appointment of a GAL and an investigation by that GAL, the court grants the motion for continuance of the trial presently scheduled for August 23-24, 2011.
So ordered.