Taylor v. Taylor ( 2018 )

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JAMES TAYLOR v. TANYA TAYLOR
(AC 38711)
Sheldon, Prescott and Elgo, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
denying his petition for visitation with the minor child of his niece, the
defendant. In his petition, the plaintiff alleged that he had a parent-like
relationship with the minor child because he had lived with the minor
child for approximately nine years until 2012. Since then, the minor
child has resided with the defendant and has not had a relationship
with the plaintiff. On appeal, the plaintiff claimed, inter alia, that the
court improperly determined that he had not satisfied his burden of
proving, by clear and convincing evidence, that the denial of visitation
would cause real and substantial harm to the minor child. Held that the
trial court properly denied the plaintiff’s petition for visitation; that
court properly concluded that irrespective of whether the plaintiff had
a parent-like relationship with the minor child, he had not established
that the denial of visitation would cause real and significant harm to
the minor child, and that finding was not clearly erroneous in light of
the evidence in the record, which included the uncontroverted testimony
of the guardian ad litem that the minor child was happy, was doing well
in school and did not want any contact with the plaintiff, and a 2013
report that indicated that the prospect of visitation with the plaintiff
previously caused considerable anxiety for the minor child, both of
which were credited by the court.
Argued April 23—officially released July 31, 2018
Procedural History
Petition for visitation of the defendant’s minor child,
brought to the Superior Court in the judicial district of
New Haven, and tried to the court, Klatt, J.; judgment
denying the petition, from which the plaintiff appealed
to this court. Affirmed.
Jeffrey D. Brownstein, for the appellant (plaintiff).
Laura N. Zullo, guardian ad litem for the minor child.
Opinion
ELGO, J. The plaintiff, James Taylor, appeals from
the judgment of the trial court denying his petition for
visitation filed pursuant to General Statutes § 46b-59.
Although the plaintiff raises multiple claims on appeal,
only one merits discussion—namely, his contention
that the court improperly determined that he had not
satisfied his burden of proving, by clear and convincing
evidence, that the denial of visitation would cause real
and substantial harm to the minor child.1 We affirm the
judgment of the trial court.
The relevant facts are not disputed. In 2012, the plain-
tiff filed a petition for visitation with the minor child
of his niece, Tanya Taylor. While that matter was pend-
ing, a family services mediation report was prepared
in May, 2013 (2013 report). That report was ‘‘an issue
focused evaluation’’ based, inter alia, on interviews with
the minor child’s therapist and school officials. The
plaintiff subsequently withdrew that petition for visi-
tation.
On June 3, 2015, the plaintiff commenced the present
action by filing a verified petition for visitation with the
minor child.2 In that petition, the plaintiff alleged that
he had a parent-like relationship with the minor child,
stating: ‘‘From 2002 [when the minor child was born,
he] lived with me for around [nine] years [until] January
20, 2012, when [the defendant] came to visit and never
returned [the minor child]. Have not seen nor talked
to him since that time. I cared for him like a son. I
scheduled and brought him to his [doctor’s] appoint-
ments and was [the] contact person regarding his
schooling and education.’’ With respect to the harm that
would result from the denial of visitation, the plaintiff
alleged that the minor child ‘‘was emotionally attached
to the plaintiff and [the] denial of visitation has resulted
and/or will continue to result in the child doing poorly
in school and have behavior issues which will continue
if custody and/or visitation is denied. The minor child
has no contact whatsoever with [his] biological father
and needs a father like figure in his life. Child is
neglected. The plaintiff requests custody and/or visita-
tion with the minor child. The plaintiff seeks specific but
only liberal visitation with the minor child. In addition
to the above, as to real and significant harm, the plaintiff
alleges that the minor child is being denied proper care
and attention physically, educationally, emotionally
and/or morally. . . . [T]he plaintiff alleges that during
[the] time periods when the minor child was living with
him, the [defendant] received and continued to receive
welfare checks from the state of [Connecticut]. The
plaintiff seeks custody and alleges that it would be
detrimental to the child’s best interest if it is not
granted.’’ On July 6, 2015, the plaintiff filed an ‘‘amended
verified petition/affidavit for custody/visitation,’’ which
reiterated the salient allegations of his June 3, 2015
petition. That amended petition further detailed the
plaintiff’s allegedly parent-like relationship with the
minor child from 2002 to 2012.
On August 5, 2015, the defendant filed a motion to
dismiss the petition for lack of subject matter jurisdic-
tion, claiming that it lacked the requisite allegations of
a parent-like relationship and substantial harm to the
minor child pursuant to Roth v. Weston, 259 Conn. 202,
234–35, 789 A.2d 431 (2002). The court disagreed and
denied that motion on August 24, 2015.
The court thereafter entered an order, with the
agreement of the parties, appointing Attorney Laura
Zullo as guardian ad litem for the minor child. The
court then held a hearing on the merits of the plaintiff’s
petition on October 13, 2015. At that hearing, Zullo
testified that she recently had visited the minor child
at his home. The child at that time was thirteen years
old and in eighth grade. As Zullo stated, ‘‘[h]e tells me
he’s doing well in school, he tells me his favorite subject
is science. And [his home] . . . it’s appropriate. You
know, his bedroom was fine. He’s got all his Legos. It
was very appropriate. I didn’t see any sort of problem
there.’’ Significantly, Zullo testified that the minor child
told her that ‘‘he didn’t want to have any contact’’ with
the plaintiff. As she explained, the minor child indicated
that ‘‘his life is happy, he’s fine, there’s no reason for
him to have contact with [the plaintiff]. He remembers
a time where it was Christmas Eve and [the plaintiff]
wouldn’t let him see his mother, and he remembers that
in his mind. And he wants no contact with [the plaintiff].
That’s what he told me.’’ Zullo also testified that, on
the basis of her investigation, she did not believe that
the minor child would suffer any real and substantial
harm if visitation with the plaintiff was denied.
When Zullo’s testimony concluded, the plaintiff sub-
mitted no further documentary or testimonial evidence.
The defendant offered a copy of the 2013 report, to
which the plaintiff objected but was overruled by the
court.3 The court then issued its ruling from the bench,
stating in relevant part: ‘‘[E]ven if the first prong of
plaintiff’s complaint [alleging a parent-like relationship]
was met, the second prong [alleging real and substantial
harm] clearly is not. . . . I’ve heard testimony that the
child is happy, that he’s healthy, and that’s a present
day observation of the child. There’s no need to look
beyond that. The guardian ad litem is an experienced
attorney [who has] done this particular type of evalua-
tion many times over the years. And clearly she noted
no indication of any problems within the child. I don’t
see the need to look beyond that.
‘‘Furthermore, I reviewed the [2013 report]. And I’ll
indicate that, quite frankly . . . I believe . . . [that] if
I allowed visitation . . . it could harm the child. The
[2013] report, in particular, noted an inappropriate rela-
tionship that had existed between the child and [the
plaintiff] that caused enormous levels of anxiety with
the child. And, in fact, the school even noted the anxiety
level was rising in the child [at] the thought of having
contact with [the plaintiff]. . . . So [the plaintiff’s peti-
tion] for visitation is denied.’’ The plaintiff thereafter
filed a motion for reargument and reconsideration,
which the court denied.
Following the commencement of this appeal, the
plaintiff filed a motion for articulation, which was
denied by the trial court. The plaintiff then filed a
motion for review of that ruling, which this court
granted. This court then ordered the trial court to articu-
late ‘‘(1) whether or not it found that a parent-like rela-
tionship existed between the plaintiff and the minor
child prior to January of 2012, and the factual basis
therefor and (2) if the court [so found], whether it deter-
mined that the defendant’s refusal to permit the child
to see the plaintiff was the sole reason that there was
currently no parent-like relationship.’’ In its subsequent
articulation, the court stated in relevant part that it
‘‘found that there was no current parent-child relation-
ship between the plaintiff and the minor child. . . .
There was evidence, through the testimony of [Zullo]
and [the 2013 report] that the child had lived with the
plaintiff for a period of time, but there had been no
contact between [them] for several years. Testimony
further indicated that [the] plaintiff was also estranged
from his extended family. [The] plaintiff did not elicit
sufficient testimony regarding the circumstances of
why the minor child lived with him prior to 2012 for
the court to make any factual determinations in that
regard.’’4
The court then clarified that its decision to deny
the plaintiff’s petition was predicated on his failure to
satisfy the substantial harm prong of the applicable legal
standard. As the court stated: ‘‘The evidence clearly
established that [the] plaintiff did not meet the second
. . . factor of the Roth analysis, which was dispositive
of his claim. . . . This court’s denial of [the] plaintiff’s
application for visitation was based on the determina-
tion that the plaintiff did not meet the second prong of
[the] Roth analysis. . . . [Zullo] testified that the child
wanted no contact with the plaintiff, in fact was quite
anxious over the possibility of being required to see
him. The testimony and the [2013 report] indicated that
there had been an inappropriate relationship between
the plaintiff and the minor child. . . . [T]he relation-
ship between the plaintiff and all related family mem-
bers appears to be nonexistent.’’ For that reason, the
court concluded that the plaintiff had not established
that the denial of visitation would cause real and sub-
stantial harm to the minor child. On appeal, the plaintiff
challenges the propriety of that determination.
In Roth v. Weston, supra, 259 Conn. 234–35, our
Supreme Court held that ‘‘there are 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.
First, the petition must contain specific, good faith alle-
gations that the petitioner has a relationship with the
child that is similar in nature to a parent-child relation-
ship. The petition must also contain specific, good faith
allegations that denial of the visitation will cause real
and significant harm to the child.’’ With respect to the
latter prong, the court explained that ‘‘[t]he family entity
is the core foundation of modern civilization. The con-
stitutionally protected interest of parents to raise their
children without interference undeniably warrants def-
erence and, absent a powerful countervailing interest,
protection of the greatest possible magnitude. . . .
Consequently, interference is justified only when it can
be demonstrated that there is a compelling need to
protect the child from harm. In the absence of a thresh-
old 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.’’
(Citations omitted.) Id., 228–29.
Our review of the court’s finding as to whether the
denial of visitation will result in real and substantial
harm to the minor child is governed by the clearly
erroneous standard. See DiGiovanna v. St. George, 300
Conn. 59, 69, 12 A.3d 900 (2011). ‘‘A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Powell-Ferri v. Ferri, 326 Conn. 457,
464, 165 A.3d 1124 (2017).
In the present case, the court concluded that, irre-
spective of whether the plaintiff had a parent-like rela-
tionship with the minor child, he had not established
that the denial of visitation would cause real and signifi-
cant harm to the minor child. In so doing, the court
credited the uncontroverted testimony of Zullo that the
child currently was happy, was doing well in school,
and did not want to have ‘‘any contact’’ with the plaintiff.
See United Technologies Corp. v. East Windsor, 262
Conn. 11, 26, 807 A.2d 955 (2002) (in case tried before
court, trial judge is sole arbiter of credibility of wit-
nesses and weight to be afforded to specific testimony).
The court also credited the 2013 report, which indicated
that the prospect of visitation with the plaintiff pre-
viously caused considerable anxiety for the minor
child.
Connecticut law recognizes that ‘‘parents should not
be faced with unjustified intrusions into their decision-
making in the absence of specific allegations and proof
. . . .’’ Roth v. Weston, supra, 259 Conn. 221. For that
reason, our law requires, as a prerequisite to such inter-
ference with parental rights, proof by clear and convinc-
ing evidence that the denial of visitation with a third
party will cause the child to suffer real and substantial
harm. Id., 226. In the present case, the court found that
the plaintiff had not satisfied that ‘‘admittedly high’’
burden. Id., 229. In light of the evidence adduced at the
October 13, 2015 hearing, we cannot conclude that the
court’s finding was clearly erroneous. The court, there-
fore, properly denied the plaintiff’s petition for visi-
tation.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also contends that the court abused its discretion in denying
(1) his request for a continuance of the hearing on the merits of his petition
and (2) his postjudgment motion for reargument and reconsideration. On
our review of the record, we conclude that those claims are without merit.
2
The petition named Tanya Taylor, the mother of the minor child, as
the defendant. Although she was represented by counsel throughout the
proceedings before the trial court, she has not filed a brief in this appeal.
Accordingly, on December 7, 2017, this court issued an order indicating that
the appeal would be heard solely on the basis of the appellant’s brief,
appendices and record as defined by Practice Book § 60-4.
3
The propriety of that evidentiary ruling is not challenged in this appeal.
4
The plaintiff filed a second motion for review with this court on February
3, 2017, claiming that the trial court had not adequately articulated whether
it had found that a parent-like relationship existed with the minor child
prior to January, 2012. By order dated April 26, 2017, this court granted
review but denied the relief requested.