Fuller v. Baldino , 176 Conn. App. 451 ( 2017 )

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MARK FULLER v. ANN BALDINO
(AC 38660)
DiPentima, C. J., and Alvord and Lavery, Js.
Syllabus
The plaintiff filed a third party petition for visitation with the defendant’s
minor child after his relationship with the defendant ended. The defend-
ant moved to dismiss the petition for lack of subject matter jurisdiction
on the ground that the plaintiff failed to allege facts sufficient to satisfy
the jurisdictional prerequisites set forth in Roth v. Weston (259 Conn.
202), specifically, that the plaintiff have a parent-like relationship with
the child and that the denial of visitation would result in real and substan-
tial harm to the child. The trial court granted the motion to dismiss and
rendered judgment thereon dismissing the petition, from which the
plaintiff appealed to this court, claiming, inter alia, that the trial court
improperly dismissed his petition without an evidentiary hearing on the
ground that he failed to allege facts sufficient to satisfy the jurisdictional
prerequisites set forth in Roth. Held that the trial court properly dis-
missed the plaintiff’s visitation petition for lack of subject matter jurisdic-
tion without an evidentiary hearing, that court having properly
determined that the petition failed to sufficiently allege that the denial
of visitation would subject the child to real and significant harm;
although the plaintiff alleged that he had a strong bond with the child,
that the child suffered and was very emotional when unable to see him,
and that he played a significant role in caring for the child’s severe
health conditions, those allegations did not rise to the level of neglect,
abuse, or abandonment, as Roth and its progeny require, and the petition
did not specifically state the type of harm the child would suffer if the
plaintiff was denied visitation.
Argued May 24—officially released September 19, 2017
Procedural History
Petition for visitation of the defendant’s minor child,
brought to the Superior Court in the judicial district
of Ansonia-Milford, where the court, S. Richards, J.,
granted the defendant’s motion to dismiss and rendered
judgment thereon, from which the plaintiff appealed to
this court. Affirmed.
Marissa Bigelli Hernandez, for the appellant
(plaintiff).
Bonnie Amendola, for the appellee (defendant).
Opinion
LAVERY, J. The plaintiff, Mark Fuller, appeals from
the judgment of the trial court dismissing his third party
petition for visitation rights pursuant to General Stat-
utes § 46b-591 and Practice Book § 25-4 as to the minor
child of the defendant, Ann Baldino. The plaintiff claims
that the court improperly dismissed his petition without
an evidentiary hearing on the ground that he failed to
allege facts establishing the requirements for jurisdic-
tion set forth in Roth v. Weston, 259 Conn. 202, 789 A.2d
431 (2002).2 We affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. On July 31, 2015, the plaintiff filed
a third party petition for visitation seeking visitation
rights with regard to the defendant’s child. The petition
alleged the following facts. Since 2006, the plaintiff and
the child ‘‘have had a parent-like relationship.’’ The
plaintiff ended his romantic relationship with the
defendant around December, 2013, but ‘‘continued to
parent the minor child until December, 2014.’’ The plain-
tiff ‘‘has been the only father the minor child has known
since the child was approximately two years old. Until
December, 2014 . . . the [plaintiff] acted as a hands-
on parent and held himself out as [the] father. The minor
child recognizes the [plaintiff] as ‘dad.’ ’’ Throughout
the plaintiff’s relationship with the child, the plaintiff
provided financial support for the child; has ‘‘cared for
the daily needs of the child’’; and ‘‘has been involved
with the major decisions concerning the child’s health,
education, and welfare.’’ Finally, the petition alleged
that the ‘‘[d]enial of visitation will cause real and signifi-
cant harm to the child due to the relationship and bond
formed between the [plaintiff] and minor child over the
past nine years.’’
The defendant moved to dismiss the petition for lack
of subject matter jurisdiction, arguing that the petition
did not allege sufficient facts to establish the prerequi-
sites for jurisdiction set forth in Roth v. Weston, supra,
259 Conn. 202, namely, that the plaintiff had a parent-
like relationship with the child and that the denial of
visitation would inflict real and substantial harm on the
child. The defendant submitted an affidavit in support
of her motion to dismiss in which she, inter alia, admit-
ted that she granted the plaintiff visitation for a period
of time after their 2013 separation but denied that the
plaintiff had provided financial or other support to the
child during their relationship.
Subsequently, the plaintiff filed an objection, arguing
that his petition had set forth the necessary factual
predicate for subject matter jurisdiction. In support of
his objection, the plaintiff filed a memorandum of law
and an affidavit in which he expanded upon some of
the factual allegations made in his petition. As relevant
in this appeal, the petitioner averred in his affidavit (1)
that he first met the child in 2005 and lived with the
child and the defendant from 2006 until their separation
in 2013; (2) that during that time period, and extending
until December, 2014, he was the child’s ‘‘primary par-
ent’’ in that he took the child to his medical appoint-
ments and was ‘‘involved in all major decision making,’’
including decisions regarding the child’s health; (3) that
he would care for the child’s ‘‘severe health conditions’’
and presently does not know whether the child contin-
ues to receive proper care; (4) that, around the end of
their relationship, the defendant ‘‘would take off for a
day or two at a time without divulging where she was,’’
leaving the child in his care; (5) that he has built a ‘‘very
strong bond’’ with the child and that the child ‘‘suffers’’
and ‘‘is very emotional’’ when unable to see him; and
(6) that the child has indicated that he misses the plain-
tiff and still considers the plaintiff to be his father.
The court heard argument on November 4, 2015, and
ultimately granted the defendant’s motion to dismiss
on the record. The court concluded that, although the
petition alleged sufficient facts to establish that the
plaintiff had a parent-like relationship with the child,
neither the petition nor the plaintiff’s affidavit suffi-
ciently alleged that the denial of visitation would cause
the child to experience real and substantial harm. This
appeal followed.
The plaintiff claims that the court improperly con-
cluded that his petition and affidavit failed to allege
facts establishing the jurisdictional requirements of
Roth. Specifically, the plaintiff argues that the court, in
determining that he failed to sufficiently allege that
denial of visitation would cause real and substantial
harm to the child, failed to consider that the emotional
harm suffered by the child as a result of his separation
from the plaintiff is sufficient under Roth.3 According
to the plaintiff, he pleaded the substantial harm require-
ment by virtue of his allegations of his close parental
relationship with the child. The defendant concedes
that the plaintiff sufficiently alleged a parent-like rela-
tionship with the child but asserts that the court prop-
erly concluded that the allegations do not amount to
the sort of real and substantial harm contemplated by
Roth. We agree with the defendant.4
We begin by setting forth the relevant standard of
review and the applicable legal principles. ‘‘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 . . . .’’
(Citation omitted; internal quotation marks omitted.)
Fennelly v. Norton, 103 Conn. App. 125, 133–34, 931
A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936(2007).
In Roth, our Supreme Court recognized that 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.’’ Roth v.
Weston, supra, 259 Conn. 228. To safeguard parents’
rights against unwarranted intrusions into their author-
ity, the court in Roth set forth requirements ‘‘that must
be satisfied in order for a court . . . to have jurisdic-
tion over a petition for visitation contrary to the wishes
of a fit parent . . . .’’ Id., 234. Specifically, ‘‘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
the 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 [General Statutes] §§ 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.
In the present case, the plaintiff argues that he satis-
fied the real and significant harm requirement because
he pleaded facts establishing that he and the child had
‘‘such a close father-child bond for an extended period
of time . . . .’’ The court in Roth explained that,
although ‘‘an allegation such as abuse, neglect or aban-
donment’’ clearly would satisfy the real and significant
harm requirement; Roth v. Weston, supra, 259 Conn.
224; the ‘‘more difficult issue is whether the child’s own
complementary interest in preserving relationships that
serve his or her welfare and protection can also consti-
tute a compelling interest that warrants intruding upon
the fundamental rights of parents to rear their children.’’
Id., 225. The court stated: ‘‘We can envision circum-
stances in which a nonparent and a child have devel-
oped 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 serious 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 sub-
stantial, 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 interests of the child or would be
very beneficial. The level of harm that would result
from the denial of visitation in such a situation is not
of the magnitude that constitutionally could justify over-
ruling a fit parent’s visitation decision. Indeed, the only
level of emotional harm that could justify court inter-
vention 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; see also Crockett v.
Pastore, 259 Conn. 240, 249–50, 789 A.2d 453 (2002)
(petitioner must allege that denial of visitation would
cause real and significant harm and not merely that
visitation will be in best interests of child).
With these legal principles in mind, we turn to the
present case. Because the first prong of Roth is not at
issue in this case, we address only the requirement
that the plaintiff allege real and substantial harm. We
conclude that the plaintiff failed to carry the burden
Roth sets where the type of harm alleged is emotional
and stems from the denial of visitation itself. Although
the plaintiff alleges that he has a ‘‘very strong bond’’
with the child and that the child ‘‘suffers’’ and is ‘‘very
emotional’’ when unable to see him, these allegations
do not rise to the level of neglect, abuse or abandon-
ment. At the most, these allegations suggest that visita-
tion would be beneficial to or in the best interests of
the child, which falls short of the standard set forth in
Roth. See Roth v. Weston, supra, 259 Conn. 226. Further-
more, the petition must state with specificity the type
of harm the child will suffer. See Martocchio v. Savoir,
153 Conn. App. 492, 502, 101 A.3d 953 (2014); see also
Fennelly v. Norton, supra, 103 Conn. App. 140–41
(merely checking box on application for visitation that
stated that ‘‘[t]he applicant has/had a relationship with
the child(ren) that is similar in nature to a parent-child
relationship and denial of visitation would cause real
and significant harm to the child(ren)’’ does not suffice
for specific, good faith allegations required by Roth).
Neither the plaintiff’s petition nor his affidavit specifies
what harm the child will suffer if he is denied visitation.
Instead, the plaintiff asks the court to infer the neglect,
lack of care, or abandonment from his allegation that
the child will ‘‘suffer’’ as a consequence of the termina-
tion of their relationship. This is not enough to establish
subject matter jurisdiction under Roth, which requires
specific, good faith allegations that the denial of visita-
tion will subject the child to real and significant harm.
See Crockett v. Pastore, supra, 259 Conn. 249–50; Roth
v. Weston, supra, 226.
In Clements v. Jones, 71 Conn. App. 688, 695–96, 803
A.2d 378 (2002), this court concluded that the plaintiff
failed to ‘‘allege that a denial of visitation would result
in harm to the child. Rather, the aspects of the applica-
tion that can be construed as relating to harm state
that the plaintiff often received the child in an ill state,
apparently 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 interests of the child.
With regard to the specific allegations about the child’s
health and his asthma, we cannot conclude, without
more, that those assertions constitute an allegation that
rises to the level of abuse, neglect or abandonment
contemplated by Roth.’’ In the present matter, although
the plaintiff alleges that he played a significant role in
caring for the child’s ‘‘severe health conditions’’ and
does not currently know who is caring for the child,
we cannot conclude, without more, that these asser-
tions are akin to abuse, neglect, or abandonment as
required by Roth. Accordingly, the trial court properly
determined that the plaintiff’s petition failed to allege
the second jurisdictional element set forth in Roth, and
properly dismissed the petition for lack of subject mat-
ter jurisdiction without an evidentiary hearing.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 46b-59 (b) provides in relevant part: ‘‘Any person may
submit a verified petition to the Superior Court for the right of visitation
with any minor child. Such petition shall include specific and good-faith
allegations that (1) a parent-like relationship exists between the person
and the minor child, and (2) denial of visitation would cause real and
significant harm.’’
2
In support of his overarching claim that the court improperly dismissed
his third party petition for lack of subject matter jurisdiction, the plaintiff
claims in his main brief that the court improperly (1) violated his due
process rights when it denied his petition without an evidentiary hearing;
(2) concluded that he lacked standing under § 46b-59; (3) applied § 46b-59
and relevant case law; (4) found that he did not plead sufficient facts that
could be proven through clear and convincing evidence; (5) precluded him
at oral argument from citing to similar trial court cases as persuasive author-
ity; (6) failed to consider public policy; and (7) decided that he did not meet
his burden of proof to invoke the trial court’s subject matter jurisdiction.
Our review of the plaintiff’s briefs reveals that these arguments all contribute
to the plaintiff’s central claim that the court erroneously determined that
he had failed to plead the jurisdictional requirements of Roth. Accordingly,
we address these arguments but do not distinguish between them as sepa-
rate claims.
3
The plaintiff also argues that the trial court misinterpreted Roth to require
an allegation of unfitness against the parent as opposed to an allegation of
real and significant harm to the child. As an initial matter, we agree that
the harm component of Roth did not require the plaintiff to allege that the
defendant was an unfit parent. See DiGiovanna v. St. George, 300 Conn.
59, 73, 12 A.3d 900 (2011) (‘‘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, par-
ents unsuccessfully may oppose visitation without necessarily being unfit
or in need of such intervention’’). Indeed, the jurisdictional requirements
of Roth presuppose that the parent is not unfit. See Roth v. Weston, supra, 259
Conn. 234 (summarizing jurisdictional ‘‘requirements that must be satisfied
in order for a court . . . to have jurisdiction over a petition for visitation
contrary to the wishes of a fit parent’’).
Upon review of the record, however, we conclude that, in assessing the
sufficiency of the allegations, the trial court looked for either allegations
of unfitness of the parent or allegations of real and substantial harm to the
child. Where the parent is not unfit, there is a constitutionally required
presumption that the parent’s opposition to visitation is in the best interests
of the child. See Crockett v. Pastore, 259 Conn. 240, 249, 789 A.2d 453 (2002);
Roth v. Weston, supra, 259 Conn. 232. It is the plaintiff’s burden to overcome
this presumption ‘‘by alleging and demonstrating that without visitation the
child would suffer real and significant harm.’’ Crockett v. Pastore, supra,
49. Because, in reaching its conclusion, the court explicitly looked for allega-
tions of real and substantial harm to the child, we see no basis for concluding
that the court did not apply the proper standard as set forth in Roth.
4
We note that, at oral argument before this court, the defendant twice
conceded that it was appropriate for the trial court, in determining whether
the plaintiff alleged the jurisdictional requirements set forth in Roth v. Wes-
ton, supra, 259 Conn. 202, to consider the factual averments set forth in the
affidavit that the plaintiff filed in support of his objection to the motion
to dismiss. The court observed in Roth, however, that, ‘‘[o]rdinarily, in
determining whether the trial court had jurisdiction over a petition for
visitation, we simply would examine the allegations of the petition and
compare them to the jurisdictional requirements set forth herein.’’ (Emphasis
added.) Id., 235; see also Fennelly v. Norton, 103 Conn. App. 125, 139 n.11,
931 A.2d 269 (‘‘[i]n the absence of any disputed issues of fact pertaining to
jurisdiction . . . we think the admittedly high requirements of Roth, the
strict application thereof and the policy considerations discussed therein
require a court, when confronted with a motion to dismiss for lack of subject
matter jurisdiction predicated solely on the application’s failure to comply
with Roth, to decide that motion on the application itself’’ [emphasis added;
internal quotation marks omitted]), cert. denied, 284 Conn. 918, 931 A.2d
936 (2007); Fennelly v. Norton, supra, 139 (‘‘[b]ecause the defendant’s motion
to dismiss for lack of jurisdiction was predicated on the insufficiency of
the application for visitation, it was inappropriate for the court to look
beyond that pleading and permit the plaintiffs to augment the application
with additional allegations at the evidentiary hearing’’); see also Practice
Book § 25-4 (‘‘[e]very application . . . in an action for visitation of a minor
child . . . shall state . . . the facts necessary to give the court jurisdiction’’
[emphasis added]). Although these authorities suggest that courts determin-
ing whether the jurisdictional requirements of Roth have been satisfied
cannot look beyond the four corners of the application itself, we need not
decide that issue in the present case because the defendant does not claim
error in that aspect of the court’s decision, and, moreover, because the facts
alleged in the affidavit, even if considered, are insufficient to satisfy Roth.