Romeo v. Bazow ( 2020 )

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RICHARD ROMEO ET AL. v. FERNNE BAZOW
(AC 42200)
Alvord, Prescott and Sullivan, Js.
Syllabus
The plaintiffs appealed to this court from the judgment of the trial court
dismissing for lack of subject matter jurisdiction their third-party petition
for visitation as to the minor children of the defendant. On their petition,
the plaintiffs checked the boxes stating that they have a relationship
with the children that is parent-like and that denial of visitation will
cause real and significant harm to the children, and they referenced an
attached affidavit. In the attached affidavit, the plaintiffs averred that
they are the children’s maternal grandparents, and they detailed their
involvement with the children. They also averred that the defendant
was preventing them from having any relationship with the children
because she was angry with the plaintiffs and that, in doing so, the
children were being harmed by deracinating them from their extended
family and family roots. The defendant moved to dismiss the petition
for lack of subject matter jurisdiction on the ground that the plaintiffs
failed to plead the necessary factual allegations to satisfy the second
jurisdictional prerequisite set forth in Roth v. Weston (259 Conn. 202),
specifically, that the denial of visitation will cause real and significant
harm to the children. Thereafter, the plaintiffs filed an expert witness
disclosure, in which they indicated that a clinical and forensic psycholo-
gist would testify as to the real and significant harm that would result
from the sudden exclusion of the plaintiffs from the children’s lives.
Following a hearing, the trial court granted the defendant’s motion to
dismiss and rendered judgment thereon, determining, inter alia, that the
plaintiffs’ petition failed to satisfy the second jurisdictional element set
forth in Roth. Held:
1. The trial court properly limited its consideration to the allegations con-
tained in the plaintiffs’ petition and the attached affidavit in ruling on
the defendant’s motion to dismiss; contrary to the plaintiffs’ claim that
that court improperly failed to consider their expert witness disclosure,
our case law instructs that it would have been inappropriate for the
court to look beyond the petition and accompanying affidavit to the
expert disclosure, as the court was required to scrutinize the petition
to determine whether it contained specific, good faith allegations of
harm, and the expert disclosure, which was not attached to the petition
and was not filed until months after the parties’ briefing on the motion
to dismiss was complete, constituted an attempt to supplement the
petition with additional allegations in an effort to satisfy the second
jurisdictional element set forth in Roth.
2. The trial court properly dismissed the plaintiffs’ petition for lack of subject
matter jurisdiction, the plaintiffs having failed to plead the requisite
level of harm under the second jurisdictional element set forth in Roth;
the only allegations as to harm in the plaintiffs’ petition and accompa-
nying affidavit were general allegations that neither rose to the level of
neglect, abuse or abandonment contemplated by Roth, nor specified the
type of harm that the children would suffer if the plaintiffs were denied
visitation with them.
Argued October 10, 2019—officially released January 21, 2020
Procedural History
Petition for visitation with the defendant’s minor chil-
dren, brought to the Superior Court in the judicial dis-
trict of Hartford, where the court, Margaret M. Murphy,
J., granted the defendant’s motion to dismiss and ren-
dered judgment thereon, from which the plaintiffs
appealed to this court. Affirmed.
John F. Morris, for the appellants (plaintiffs).
Steven R. Dembo, with who were Caitlin E. Kozloski
and, on the brief, P. Jo Anne Burgh, for the appellee
(defendant).
Opinion
ALVORD, J. The plaintiffs, Richard Romeo and Nancy
Romeo, appeal from the judgment of the trial court
dismissing their third-party petition for visitation
brought pursuant to General Statutes § 46b-59 and Prac-
tice Book § 25-4 as to the minor children of the defen-
dant, Fernne Bazow. On appeal, the plaintiffs claim that
the court improperly dismissed their petition on the
basis that it failed to satisfy the jurisdictional pleading
requirements set forth in Roth v. Weston, 259 Conn.
202, 789 A.2d 431 (2002). We affirm the judgment of
the trial court.
The record reveals the following relevant facts and
procedural history. On January 8, 2018, the plaintiffs
filed a third-party petition for visitation seeking visita-
tion with the defendant’s two minor children.1 The plain-
tiffs checked the box on the petition stating that they
‘‘have a relationship with the child(ren) that is parent-
like.’’ In the space below, the plaintiffs wrote: ‘‘See
attached Affidavit.’’ The plaintiffs also checked the box
stating that ‘‘[d]enial of visitation will cause real and
significant harm to the child(ren)’’ and again referenced
the attached affidavit.2
In the attached affidavit, the plaintiffs averred that
they are the maternal grandparents of the children and
that they ‘‘have had a long-standing involvement with
[their] grandchildren that has been so active, involved,
and regular as to be the same as a parent-child relation-
ship.’’ They averred that they had lived with the children
for the children’s entire lives and had taught them
hygiene, safety, respect, and morality, among other
basic necessities of life. They averred that Richard
Romeo had been the only consistent male role model
the children have had. They averred that the defendant
was upset with them because they had recently advo-
cated for the defendant’s daughter to have a relationship
with her estranged father and that the defendant had
retaliated against the plaintiffs by moving out of their
home and restricting their access to the children.
The plaintiffs’ affidavit contained twenty-three para-
graphs detailing their involvement with the children,
including providing childcare, both during their infancy
‘‘on a daily and often over-night basis,’’ and during their
preteen years to enable the defendant to maintain
employment. They averred that they provided clothing,
shoes and shelter for the children, taught them life
skills, took them on vacations, did homework with
them, and facilitated their involvement in sports activi-
ties. As to Nancy Romeo, they averred that she ‘‘became
the custodian’’ for the children when she retired in 2013,
at which time she became responsible for ‘‘getting them
up in the morning, getting them breakfast, making sure
homework was done, and taking them to and picking
them up from school, after school activities, supper and
putting them to bed.’’ The plaintiffs averred that the
defendant’s daughter has asthma, and that ‘‘many times
[they] were the ones doing asthma treatment with her,
bringing her to the doctor, and on occasion to the hospi-
tal.’’ The plaintiffs averred that they strongly feel that
‘‘it is in [the] children’s best interests to maintain a
consistent and ongoing relationship’’ with them.
The plaintiffs further averred: ‘‘We are gravely con-
cerned that [the defendant] is preventing us from seeing
[the] children because she is angry with us over our
support of [her daughter’s] paternal relationship. [Her
daughter] is now [fourteen], and needs to know who
her father is, and have a relationship with him. Since
mid-2017, [the defendant] has been removing the chil-
dren from any relationship with us and extended family
members. It is so hurtful that [the defendant] would try
to prevent the children from having relationships with
their family members. Our extended family and friends
saw the children on a nearly weekly basis since they
were very little, and now [the defendant] is restricting
all such access. There can be no greater harm to a child
than the neglecting to promote and foster a child’s roots
in family [and] friends which directly affect the child’s
emotional growth and moral compass. The harm to the
children, by deracinating their family roots is real and
significant because it undermines a substantial part of
who they are.’’
The plaintiffs sought visitation with the children ‘‘one
weekend per month from Friday after school until Sun-
day night at dinnertime, one mid-week overnight every
other week, summer vacation time, and regular tele-
phone or FaceTime access.’’
On January 31, 2018, the defendant filed a motion to
dismiss the petition on the basis that the plaintiffs
lacked standing and, therefore, that the court lacked
subject matter jurisdiction. In her memorandum of law
in support of her motion to dismiss, the defendant
argued that the plaintiffs had failed to plead the factual
allegations necessary to provide the court with jurisdic-
tion. Specifically, she argued that the petition failed
to satisfy the second element of the two part test for
standing established by our Supreme Court in Roth v.
Weston, supra, 259 Conn. 235, in that the petition lacked
specific, good faith allegations that denial of the visita-
tion will cause real and significant harm to the children.
She argued that the only allegation of harm contained
in the petition did not specifically identify the type of
harm and spoke ‘‘to some hypothetical child or children
and not even the defendant’s children . . . .’’ She fur-
ther argued that there were no allegations that ‘‘would
be of such magnitude such as to allow the state to
assume custody under [General Statutes §§] 46b-120
and 46b-129.’’
On February 16, 2018, the plaintiffs filed an objection
to the motion to dismiss, in which they argued that the
defendant’s claims were not the proper subject of a
motion to dismiss. They maintained that ‘‘[t]he defen-
dant’s claim that the allegations in the affidavit do not
rise to the level of ‘parent-like relationship’ and/or that
the denial will not cause ‘real and significant harm’ are
appropriately subjects of a hearing on the merits of
the petition, where the claims of both parties can be
weighted, considered and decided.’’ The defendant filed
a reply to the plaintiffs’ objection on March 8, 2018.
On June 6, 2018, the plaintiffs filed an expert witness
disclosure, in which they indicated that Sidney Horo-
witz, a clinical and forensic psychologist, was expected
to testify as to ‘‘the real and significant harm caused
to the minor children by the defendant’s sudden exclu-
sion of the plaintiffs from the children’s lives after years
of substantial and regular involvement.’’3 The disclosure
was refiled on September 7, 2018. On September 25,
2018, the defendant filed a motion in limine seeking to
preclude the plaintiffs from presenting expert testimony
during the hearing on the defendant’s motion to dismiss.
The defendant argued therein that the proper inquiry
for the court was whether the petition, as pleaded, was
sufficient to afford the court jurisdiction and that the
plaintiffs should not be permitted to supplement their
allegations through expert testimony.
The parties appeared before the court, Margaret M.
Murphy, J., on September 26, 2018. The defendant’s
counsel represented that the parties had met that morn-
ing with Judge Olear, who had denied the plaintiffs’
request for a continuance based on the filing of the
motion in limine. According to the defendant’s counsel,
Judge Olear had stated that the matter was going for-
ward because ‘‘there was no ability to have third par-
ties.’’4 The defendant’s counsel accordingly restricted
his argument before Judge Murphy to the motion to
dismiss, and the plaintiffs’ counsel did not thereafter
reference the expert disclosure. At the conclusion of
argument, the court stated that it needed to decide the
subject matter jurisdiction issue before proceeding and
that it would issue a decision shortly.
On October 5, 2018, the court issued a memorandum
of decision in which it granted the defendant’s motion
to dismiss the petition on the basis that the plaintiffs
lacked standing because their petition failed to include
the jurisdictional elements required by Roth. As to the
first element, the court found that, although ‘‘the peti-
tion asserts daily interactions and contact, cohabitation
alone does not establish the requisite parent-like rela-
tionship.’’ With respect to the allegations of activities
that the plaintiffs facilitated with the children, the court
found that such interactions did not suffice to meet the
jurisdictional threshold.5 As to the second element, the
court found that the petition contained no specific alle-
gations of real and significant harm to the children from
the lack of visitation. Specifically, the court found that
the plaintiffs’ allegations evidenced a disagreement with
certain parenting decisions made by the defendant but
that the plaintiffs did not allege that the defendant is
unfit or that the children are neglected. The court stated:
‘‘The grandchildren may miss regular contact with their
grandparents, although this fact is not alleged. But even
if, for argument’s sake, the grandchildren miss their
grandparents or the defendant has made parenting mis-
takes, this type of harm alone does not rise to the level
of neglect or uncared for as contemplated by Roth or
as defined in . . . § 46b-59.’’ Accordingly, the court
granted the defendant’s motion to dismiss the petition.
This appeal followed.
On appeal, the plaintiffs claim that the court erred
in dismissing the petition and in failing to consider the
plaintiffs’ expert witness disclosure. We disagree.
We first set forth our standard of review. ‘‘The stan-
dard of review of a motion to dismiss is . . . well estab-
lished. 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.
. . . Because a challenge to the jurisdiction of the court
presents a question of law, our review of the court’s
legal conclusion is plenary. . . . Subject matter juris-
diction 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 . . . .’’
(Internal quotation marks omitted.) Fuller v. Baldino,
176 Conn. App. 451, 456–57, 168 A.3d 665 (2017).
We next set forth applicable legal principles. In Roth
v. Weston, supra, 259 Conn. 228, our Supreme Court
recognized that the ‘‘constitutionally protected interest
of parents to raise their children without interference
undeniably warrants deference and, absent a powerful
countervailing interest, protection of the greatest possi-
ble magnitude.’’ To safeguard parents’ rights against
unwarranted intrusions into their authority, the court
set forth ‘‘two requirements that must be satisfied in
order for a court: (1) to have jurisdiction over a petition
for visitation contrary to the wishes of a fit parent; and
(2) to grant such a petition.’’ Id., 234.
‘‘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 rela-
tionship. 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., 234–35.
‘‘Second, once these high jurisdictional hurdles have
been overcome, the petitioner must prove these allega-
tions by clear and convincing evidence. Only if that
enhanced burden of persuasion has been met may the
court enter an order of visitation.’’ Id., 235.
Following Roth, this court has described the proce-
dure to be followed by the trial court when faced with
a motion to dismiss a petition for visitation on the basis
that it fails to allege the jurisdictional elements set forth
in Roth. Specifically, ‘‘the trial court is required . . .
to scrutinize the [petition] and to determine whether it
contains specific, good faith allegations of both relation-
ship and harm. . . . If the [petition] does not contain
such allegations, the court lacks subject matter jurisdic-
tion and the [petition] must be dismissed.’’ (Citations
omitted; footnote omitted.) Fennelly v. Norton, 103
Conn. App. 125, 142, 931 A.2d 269, cert. denied, 284
Conn. 918, 931 A.2d 936 (2007); see Fuller v. Baldino,
supra, 176 Conn. App. 460–61 (court properly dismissed
third-party petition for lack of subject matter jurisdic-
tion where petition failed to allege second jurisdictional
element set forth in Roth); Warner v. Bicknell, 126 Conn.
App. 588, 593, 12 A.3d 1042 (2011) (‘‘[o]ur case law is
clear that, absent the allegations identified by the Roth
court, the court must dismiss a third party’s [petition]
for visitation’’); see also Firstenberg v. Madigan, 188
Conn. App. 724, 736, 205 A.3d 716 (2019) (court lacked
subject matter jurisdiction over petition that lacked
necessary allegations).
In the present case, the plaintiffs argue that the court
improperly declined to consider their expert disclosure
when ruling on the defendant’s motion to dismiss their
petition. They maintain that the disclosure was part
of the record available to the court when considering
whether the Roth standards were satisfied and that the
disclosure specifically ‘‘address[ed] the harm issue in
addition to their affidavit.’’ As noted previously, it is not
clear from our scrutiny of the record that the plaintiffs
requested that Judge Murphy consider the expert disclo-
sure because, prior to oral argument before Judge Mur-
phy, Judge Olear had stated, as represented by the
defendant’s counsel, that no ‘‘third parties’’ could pres-
ent testimony. Even if the plaintiffs had made such a
request, we conclude that the court properly limited
its consideration to the allegations contained in the
plaintiffs’ petition, including the attached affidavit.6
When the issue raised in a motion to dismiss is the
plaintiff’s failure to comply with the Roth requirements
in a third-party petition for visitation, Roth instructs
that the court simply should ‘‘examine the allegations
of the petition and compare them to the jurisdictional
requirements set forth herein.’’ Roth v. Weston, supra,
259 Conn. 235. In Fennelly v. Norton, supra, 103 Conn.
App. 134–36, 138, this court considered whether the
trial court, after a motion to dismiss had been filed,
properly conducted an evidentiary hearing, at which
the plaintiffs concededly attempted to establish the
threshold requirements of Roth. On appeal, this court
concluded that, ‘‘[b]ecause the defendant’s motion to
dismiss for lack of jurisdiction was predicated on the
insufficiency of the [petition] for visitation, it was inap-
propriate for the court to look beyond that pleading
and permit the plaintiffs to augment the [petition] with
additional allegations at the evidentiary hearing.’’ Id.,
139.
The defendant in the present case filed a motion
to dismiss the petition and a memorandum of law in
support, in which she argued that the petition was defi-
cient because the allegations failed to satisfy the Roth
requirements. In ruling on the motion to dismiss, the
court was required to scrutinize the petition to deter-
mine whether it contained specific, good faith allega-
tions of both relationship and harm. The court properly
conducted this analysis. The plaintiffs’ expert disclo-
sure, which was not attached to the petition and was
not filed until months after the parties’ briefing on the
motion to dismiss was complete, constituted an attempt
to supplement the plaintiffs’ petition with additional
allegations in an effort to satisfy the second jurisdic-
tional element set forth in Roth. Thus, it was not
improper for the court to limit its consideration to the
allegations of the petition and accompanying affidavit.
Indeed, our case law instructs that it would have been
inappropriate for the court to look beyond that pleading
to the expert disclosure.7
Having concluded that the court properly limited its
consideration to the allegations of the petition and the
attached affidavit, we turn to the plaintiffs’ claim that
the court improperly determined that the petition failed
to satisfy the Roth requirements. We conclude that the
court properly determined that the plaintiffs failed to
plead the requisite level of harm under the second ele-
ment of the Roth requirements.8
As stated previously, the second element of the Roth
test requires that the petition ‘‘contain specific, good
faith allegations that denial of the visitation will cause
real and significant harm to the child. . . . [T]hat
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.’ ’’9
Roth v. Weston, supra, 259 Conn. 235; see also Firstenb-
erg v. Madigan, supra, 188 Conn. App. 735 (‘‘[t]he stat-
ute is clear and unambiguous that a petition for visita-
tion must make specific, good faith allegations that the
minor child will suffer real and significant harm akin
to neglect if visitation were denied’’).
In Roth, our Supreme Court stated: ‘‘[I]t is unquestion-
able that in the face of allegations that parents are unfit,
the state may intrude upon a family’s integrity. . . .
Therefore, it is clear that a requirement of an allegation
such as abuse, neglect or abandonment would provide
proper safeguards to prevent families from defending
against unwarranted intrusions and would be tailored
narrowly to protect the interest at stake.’’ (Citations
omitted.) Roth v. Weston, supra, 259 Conn. 224. The
court described as the ‘‘more difficult issue . . .
whether the child’s own complementary interest in pre-
serving relationships that serve his or her welfare and
protection can also constitute a compelling interest that
warrants intruding upon the fundamental rights of par-
ents to rear their children.’’ Id., 225. The court stated:
‘‘We can envision circumstances in which a nonparent
and a child have developed such substantial emotional
ties that the denial of visitation could cause serious and
immediate harm to that child. For instance, when a
person has acted in a parental-type capacity for an
extended period of time, becoming an integral part of
the child’s regular routine, that child could suffer seri-
ous harm should contact with that person be denied
or so limited as to seriously disrupt that relationship.
Thus, proof of a close and substantial relationship and
proof of real and significant harm should visitation be
denied are, in effect, two sides of the same coin. Without
having established substantial, emotional ties to the
child, a petitioning party could never prove that serious
harm would result to the child should visitation be
denied. This is as opposed to the situation in which
visitation with a third party would be in the best inter-
ests of the child or would be very beneficial. The level
of harm that would result from denial of visitation in
such a situation is not of the magnitude that constitu-
tionally could justify overruling a fit parent’s visitation
decision. 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 . . . §§ 46b-120 and 46b-129—namely,
that the child is ‘neglected, uncared-for or dependent’
as those terms have been defined.’’ Id., 225–26.
Recently, in Fuller v. Baldino, supra, 176 Conn. App.
459, this court concluded that allegations that the plain-
tiff has a ‘‘very strong bond’’ with the child and that
the child ‘‘suffers’’ and ‘‘is very emotional’’ when unable
to see him did not rise to the level of neglect, abuse or
abandonment. This court further concluded that the
allegations failed to specify what harm the child will
suffer if he is denied visitation and that the petition,
instead, asked the court ‘‘to infer neglect, lack of care,
or abandonment from his allegation that the child will
‘suffer’ as a consequence of the termination of their
relationship.’’ Id., 460. Accordingly, the allegations were
insufficient under Roth to establish subject matter juris-
diction. Id. The court in Fuller relied on Clements v.
Jones, 71 Conn. App. 688, 695, 803 A.2d 378 (2002), in
which this court considered the plaintiff’s allegations
that she ‘‘often received the child in an ill state, appar-
ently due to the child’s asthma, and needed to nurse
him back to health, that the plaintiff spent much time
nursing the child back to health, that separation would
be unjust and inhumane to the child, and that visitation
would be in the best interest of the child.’’ With respect
to the allegations regarding the child’s health, without
more, this court could not conclude that they ‘‘consti-
tute an allegation that rises to the level of abuse, neglect,
or abandonment contemplated by Roth.’’ Id., 695–96.
This court further concluded that ‘‘[t]he other assertions
also do not allege the requisite level of harm necessary
to satisfy the harm test set out in Roth.’’ Id., 696; see
also Firstenberg v. Madigan, supra, 188 Conn. App. 735
(court lacked jurisdiction over third-party petition for
visitation, where petition ‘‘made several unsubstanti-
ated allegations’’ about defendant and his attorney,
none of which addressed type of real and substantial
harm contemplated by §§ 46b-59 and 46b-120, or refer-
enced type of harm child would experience if visitation
were denied).
In the present case, the only allegations as to harm
in the plaintiffs’ petition and accompanying affidavit
are the following: ‘‘There can be no greater harm to a
child than the neglecting to promote and foster a child’s
roots in family [and] friends which directly affect the
child’s emotional growth and moral compass. The harm
to the children, by deracinating their family roots is
real and significant because it undermines a substantial
part of who they are.’’ These general allegations neither
rise to the level of neglect, abuse or abandonment, nor
specify the type of harm the children will suffer if the
plaintiffs are denied visitation. Accordingly, we agree
with the trial court that the plaintiffs’ petition failed to
allege the second jurisdictional element set forth in
Roth, and the court properly dismissed the petition for
lack of subject matter jurisdiction.10
The judgment is affirmed.
In this opinion the other judges concurred.
1
Nancy Romeo is the defendant’s mother, and Richard Romeo is the
defendant’s stepfather.
2
The petition was signed by Richard Romeo only and was not sworn to
before a clerk, notary public, or commissioner of the Superior Court. The
attached affidavit, executed the same day as the petition, was signed by
both Richard Romeo and Nancy Romeo and sworn to before a commissioner
of the Superior Court. At oral argument before this court, the defendant
argued that this deficiency alone would require dismissal of the petition,
citing Firstenberg v. Madigan, 188 Conn. App. 724, 731 n.6, 205 A.3d 716
(2019). In that case, this court noted that the appellant’s failure to verify
the petition, as required by § 46b-59 (b), alone would require dismissal of
the petition. Id. In the present case, the trial court did not address this
discrepancy in its memorandum of decision, and the defendant did not
analyze the issue in her appellate brief as an alternative ground to affirm
the judgment. Moreover, because we conclude that the court properly dis-
missed the petition on the basis that it failed to satisfy the second element
of the Roth standard, we need not resolve whether an absent or inconsistent
verification provides an additional and independent basis for dismissal of
the petition.
3
The plaintiffs’ disclosure indicated that Horowitz was expected to opine,
inter alia, that ‘‘the [plaintiffs] have had a reciprocal parent-like relationship
with the minor children that has resulted in a psychological bonding between
them . . . [t]hat sudden rupture of the relationship by unilateral action of
the defendant, without cause, is reasonably likely to cause traumatogenic
consequences for the children . . . [and] [t]hat there is a reasonable psycho-
logical probability that the defendant’s intentional rupture of the relation-
ship, and traumatogenic harms can substantially [a]ffect the children’s emo-
tional and psychological development resulting in real and substantial harm.’’
4
The court file does not indicate that a ruling was issued on the motion
in limine.
5
The court also found that the defendant’s termination of regular contact
between the plaintiffs and the children in mid-2017 ‘‘precludes a finding of
a present parent-like relationship . . . .’’ On appeal, the plaintiffs argue that
the court applied the wrong standard of law, in that it deviated from the
Roth standard ‘‘by introducing a requirement of a ‘present’ parent-like stan-
dard that is not found in the statute or the case law.’’ We need not address
this argument, as we conclude that the court properly dismissed the petition
on the basis that it failed to satisfy the second element of the Roth standard.
See Fennelly v. Norton, 103 Conn. App. 125, 142, 931 A.2d 269 (petition
must contain ‘‘specific, good faith allegations of both relationship and harm’’
[emphasis added]), cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).
6
The defendant passingly argues in her appellate brief that the court
should not have considered the allegations contained in the plaintiffs’ affida-
vit, which was attached to and referenced in the plaintiffs’ petition. We need
not address this issue because the facts alleged in the affidavit, even if
considered, are insufficient to satisfy Roth.
7
We further note that, in light of the requirement in § 46b-59 (b) that
third-party petitions for visitation be verified, it would be particularly inap-
propriate for the court to consider representations contained in an expert
disclosure, which our rules of practice do not require to be verified. See
Practice Book § 13-4. Indeed, the purpose of our rule of practice requiring
expert disclosure merely is ‘‘to assist the defendant in the preparation of
his case, and to eliminate unfair surprise by furnishing the defendant with
the essential elements of a plaintiff’s claim.’’ Wexler v. DeMaio, 280 Conn.
168, 188, 905 A.2d 1196 (2006).
8
Accordingly, we need not address the plaintiffs’ argument that the court
improperly determined that they failed to allege the first Roth requirement.
See footnote 5 of this opinion.
9
General Statutes § 46b-59 (a) (2) defines real and significant harm to
mean ‘‘that the minor child is neglected, as defined in section 46b-120, or
uncared for, as defined in said section.’’
General Statutes § 46b-120 (4) provides in relevant part that ‘‘[a] child
may be found ‘neglected’ who, for reasons other than being impoverished,
(A) has been abandoned, (B) is being denied proper care and attention,
physically, educationally, emotionally or morally, or (C) is being permitted
to live under conditions, circumstances or associations injurious to the well-
being of the child . . . .’’
General Statutes § 46b-120 (6) provides in relevant part that ‘‘[a] child
may be found ‘uncared for’ (A) who is homeless, (B) whose home cannot
provide the specialized care that the physical, emotional or mental condition
of the child requires, or (C) who has been identified as a victim of trafficking,
as defined in section 46a-170. . . .’’
10
In their appellate brief, the plaintiffs rely on DiGiovanna v. St. George,
300 Conn. 59, 12 A.3d 900 (2011), for a number of general legal propositions.
In that case, the issue on appeal was whether a trial court may deny a
nonparent’s petition for visitation when the applicant has proven by clear
and convincing evidence that he has a parent-like relationship with the child
and that the child would suffer harm akin to abuse and neglect if the
relationship is not permitted to continue, if the trial court concludes that
visitation nonetheless is not in the best interest of the child. Id., 61. In
resolving that question, the court noted that it was ‘‘treat[ing] as uncontested
the trial court’s findings that the plaintiff alleged and proved the Roth factors
by clear and convincing evidence.’’ Id., 70. Thus, DiGiovanna primarily
addressed the implementation of visitation following the third party’s plead-
ing and proving the requisite Roth elements of the parent-like relationship
and substantial harm akin to abuse or neglect if visitation were denied.
Accordingly, it does not assist this court in its analysis as to whether the
jurisdiction elements were alleged in the present case.
We recognize, however, as the plaintiffs emphasize, that our Supreme
Court in DiGiovanna noted that ‘‘because the requisite harm for obtaining
visitation over a fit parent’s objection is akin to, but falls short of, the
neglected, uncared-for or dependent standard for intervention by the
[Department of Children and Families], parents unsuccessfully may oppose
visitation without necessarily being unfit or in need of such intervention.’’
Id., 73. Because the plaintiffs’ allegations fall considerably short of the
requisite harm akin to neglect, we fail to see how this principle is of any
assistance to the plaintiffs.