Delena v. Grachitorena ( 2022 )

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DIANE DELENA v. GREGORY
GRACHITORENA ET AL.
(AC 44914)
Moll, Clark and DiPentima, Js.
Syllabus
The plaintiff grandmother appealed to this court from the order of the trial
court denying her petition for visitation with her minor grandchildren
brought pursuant to statute (§ 46b-59). The plaintiff, whose testimony
was the only evidence presented at the hearing on the petition, claimed
that she had had visitation with the children before the termination
of the parental rights of the children’s biological parents but that the
defendants ended that visitation when they became the children’s legal
guardians. On appeal, the plaintiff claimed that the court improperly
applied the factors set forth in § 46b-59 in determining that she did
not have a parent-like relationship with the children and improperly
emphasized the length of time since she had last seen them. Held that
the trial court did not err in denying the plaintiff’s petition for visitation
with the children, as it found that the plaintiff had not demonstrated,
by clear and convincing evidence, that she had a parent-like relationship
with them: the court, which found the plaintiff’s testimony not credible,
determined that the plaintiff had seen the children once in four years
and that her relationship with them had changed substantially from
when it started in that she had had almost no contact with them since
the defendants became their legal guardians; moreover, contrary to the
plaintiff’s assertions, the record supported the court’s finding that the
plaintiff had seen the children only once in four years, and it reasonably
could be inferred from the court’s decision that, pursuant to the factors
in § 46b-59 (d), the court considered whether the plaintiff had had regular
contact with and a close and substantial relationship with them; further-
more, because the court found that no parent-like relationship with the
children existed, it was not required to determine, as the plaintiff
claimed, whether the denial of the visitation petition would result in
real and significant harm to the children.
Argued September 7—officially released October 25, 2022
Procedural History
Petition for the right of visitation with two minor
children for whom the defendants are the legal guard-
ians, brought to the Superior Court in the judicial dis-
trict of New London at Norwich, where the court, New-
son, J., denied the petition and rendered judgment
thereon, from which the plaintiff appealed to this court.
Affirmed.
Alexandra C. Ritter, for the appellant (plaintiff).
Opinion
MOLL, J. The plaintiff, Diane Delena, appeals from
the judgment of the trial court denying her petition for
visitation with her two minor grandchildren (children)
brought pursuant to General Statutes § 46b-59.1 On
appeal, the plaintiff claims that the trial court erred
in denying her petition for visitation in that the court
improperly applied the factors set forth under § 46b-59
when it determined that the plaintiff did not meet her
burden to demonstrate by clear and convincing evi-
dence that she has a parent-like relationship with the
children.2 We disagree and, accordingly, affirm the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On April 6, 2021,
pursuant to § 46b-59, the plaintiff filed a verified petition
for visitation with the children.3 The plaintiff alleged
that the defendants, Gregory Grachitorena and Leticia
Grachitorena, who are the children’s paternal grandfa-
ther and stepgrandmother, respectively, became the
children’s legal guardians after the parental rights of
the children’s biological parents were terminated in
2017 (termination of parental rights).4 The plaintiff fur-
ther alleged that she had had visitation with the children
prior to the termination of parental rights but that the
defendants had abruptly terminated her visitation once
they became the legal guardians of the children. In
addition, the plaintiff alleged facts seeking to demon-
strate that she had a parent-like relationship with the
children and that denying her visitation would cause
real and significant harm.
A hearing regarding the plaintiff’s petition was held
on August 5, 2021.5 The only evidence presented at that
hearing was the plaintiff’s testimony. At that hearing,
the plaintiff testified that she believed that the Depart-
ment of Children and Families (department) did not
award her custody of the children after the parental
rights of the biological parents had been terminated
because she was not a Connecticut resident and, thus,
not a resource, during the period of the termination
proceedings from 2014 through 2017.6
The plaintiff also testified about her relationship with
the children, focusing mainly on events that occurred
before the termination of parental rights. The plaintiff
testified that, for a period before the termination pro-
ceedings began, she traveled back and forth between
Tennessee and Connecticut to be with her daughter,
the children’s mother, to help take care of the children.
The plaintiff also testified that while she maintained a
residence in Connecticut, she lived in Tennessee. The
plaintiff testified that, until the termination proceedings
began in 2014, in regard to the children, she provided
transportation to and from day care, provided swim-
ming and dancing lessons, took them shopping and to
medical appointments, taught them how to ride a bike,
got them baptized, took them on various recreational
activities, and provided financial assistance to her
daughter for the care of the children. The plaintiff also
testified that she continued visiting the children during
the termination proceedings, but that once the defen-
dants became the legal guardians of the children, they
denied her visitation despite her several attempts to
arrange visitation.
As to the last time that she had seen the children,
the plaintiff offered conflicting testimony. At one point,
the plaintiff testified that she last saw the children in
a parking lot with the defendant Leticia Grachitorena
before the onset of the COVID-19 pandemic, presum-
ably in 2019. Later, the plaintiff testified that ‘‘[t]he last
time [the children] saw me they were screaming, crying,
begging me not to let [them] go . . . .’’ When asked by
the court to specify when that event had occurred, the
plaintiff testified that it happened in November, 2017.
On August 6, 2021, the trial court, Newson, J., denied
the plaintiff’s petition for visitation. The court con-
cluded that, ‘‘[b]ased on [the plaintiff’s] testimony, the
court determines that it does not find it credible that
the plaintiff has recently had a parent-like relationship
[with the children]. By her own admission, her current
relationship with the children has changed substantially
from when it started. [The department] did not consider
her a Connecticut resident. [The department] also took
custody of the minor children seven years ago [in 2014],
and the plaintiff has only seen the children once in four
years. The court cannot make a finding that there is
now a parent-like relationship to meet that statutory
burden.’’ This appeal followed.
On appeal, the plaintiff claims that the trial court
erred in denying her petition. Specifically, the plaintiff
argues that the court improperly applied the factors set
forth in § 46b-59 when it determined that she did not
meet her burden to demonstrate by clear and convinc-
ing evidence that she has a parent-like relationship with
the children. The plaintiff also contends that the court
placed improper emphasis on the length of time since
she has seen the children. We disagree.
‘‘Appellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
The trial court’s findings are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . A
finding of fact is clearly erroneous when there is no
evidence 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.) Jeanette-Blethen v. Jeanette-Blethen,
172 Conn. App. 98, 102, 159 A.3d 236 (2017); see also
DiGiovanna v. St. George, 300 Conn. 59, 69, 12 A.3d
900 (2011) (indicating that appellate review of determi-
nations as to whether parent-like relationship and harm
exist as required by § 46b-59 is subject to clearly errone-
ous standard).
Relevant here, § 46b-59 (c) provides nine nonexclu-
sive factors that a court may consider when determining
whether there is a parent-like relationship between the
person seeking visitation and the minor child. Section
46b-59 (c) provides that a court ‘‘may consider, but shall
not be limited to . . . (1) The existence and length of
a relationship between the person and the minor child
prior to the submission of a petition pursuant to this
section; (2) The length of time that the relationship
between the person and the minor child has been dis-
rupted; (3) The specific parent-like activities of the per-
son seeking visitation toward the minor child; (4) Any
evidence that the person seeking visitation has unrea-
sonably undermined the authority and discretion of the
custodial parent; (5) The significant absence of a parent
from the life of a minor child; (6) The death of one of
the minor child’s parents; (7) The physical separation
of the parents of the minor child; (8) The fitness of the
person seeking visitation; and (9) The fitness of the
custodial parent.’’ In addition, § 46b-59 (d) provides
that, ‘‘[i]n determining whether a parent-like relation-
ship exists between a grandparent seeking visitation
pursuant to this section and a minor child, the Superior
Court may consider, in addition to the factors enumer-
ated in subsection (c) of this section, the history of
regular contact and proof of a close and substantial
relationship between the grandparent and the minor
child.’’
Of emphasis in the court’s decision was its consider-
ation of the factors set forth in § 46b-59 (c) (1) and (2),
particularly the length of time since the plaintiff has
had contact with the children. The court found the
plaintiff’s testimony that she had a recent parent-like
relationship with the children not credible, determining
that her relationship with the children has ‘‘changed
substantially from when it started.’’ The court noted
that the department did not consider the plaintiff a
Connecticut resident at the time of the termination of
parental rights in 2017, that the department took cus-
tody of the children in 2014, and that the plaintiff had
seen the children only ‘‘once in four years.’’7 Section
46b-59 (c) does not require a court to consider all nine
factors enumerated, or to place greater emphasis on
some factors over others. Consequently, the court did
not err when it concluded that it could not find that
the plaintiff had shown by clear and convincing evi-
dence that she has a parent-like relationship with the
children, in part because of the length of time since
the plaintiff had seen the children and because her
relationship with them had ‘‘changed substantially from
when it started.’’
The plaintiff’s testimony was subject to a credibility
determination by the court. ‘‘[I]t is the exclusive prov-
ince of the trier of fact to weigh the conflicting evidence,
determine the credibility of witnesses and determine
whether to accept some, all or none of a witness’ testi-
mony.’’ (Internal quotation marks omitted.) DE Auto
Transport, Inc. v. Eurolite, LLC, 186 Conn. App. 270,
276, 199 A.3d 92 (2018), cert. denied, 330 Conn. 960,
199 A.3d 560 (2019). The court stated that, ‘‘[b]ased on
[the plaintiff’s] testimony,’’ it did not find ‘‘it credible
that the plaintiff has recently had a parent-like relation-
ship’’ with the children. From this express language,
because the only evidence presented at the hearing was
the plaintiff’s testimony, it reasonably can be inferred
that the court did not find the plaintiff’s testimony sup-
porting the existence of a parent-like relationship with
the children credible.
The plaintiff next argues that the court was required
to consider, in addition to the factors in § 46b-59 (c),
the factors in § 46b-59 (d), which the court failed to do.
It reasonably can be inferred from the court’s decision
that, pursuant to § 46b-59 (d), it considered whether
the plaintiff had had ‘‘regular contact’’ and a ‘‘close and
substantial relationship’’ with the children. As noted
previously, the court concluded that the plaintiff’s rela-
tionship with the children had changed ‘‘substantially
from when it started,’’ in that she had had almost no
contact with the children since the defendants became
their legal guardians in 2017. Thus, we are not convinced
that the court committed any error under § 46b-59 (d).
Additionally, the plaintiff argues that the court erred
in finding that she last saw the children in 2017, instead
asserting that she last saw the children in 2019. Contrary
to the plaintiff’s argument, however, the court did not
make a finding that she last saw the children in 2017;
rather, it found that she ‘‘has only seen the children
once in four years’’ (i.e., the four years prior to the
court’s August 6, 2021 ruling on the plaintiff’s petition
for visitation). The court’s finding does not specify
when the plaintiff last saw the children, and it can be
interpreted to mean that the last contact was in 2019.
In any event, assuming, arguendo, that the court found
that the plaintiff last saw the children in 2017, the record
supports that finding. As noted previously, the plaintiff
gave conflicting testimony as to when she last saw the
children; the plaintiff testified separately that she last
saw the children (1) in 2017 and (2) immediately before
the onset of the COVID-19 pandemic. It was within
the province of the court to resolve this inconsistent
testimony. See, e.g., Hospital Media Network, LLC v.
Henderson, 209 Conn. App. 395, 430, 268 A.3d 657(2021), cert. denied, 343 Conn. 916, 274 A.3d 867 (2022);
id. (‘‘a trier of fact is free to credit one version of events
over the other, even from the same witnesses’’ (internal
quotation marks omitted)).
The plaintiff further contends that the court failed to
find whether denial of her petition would cause ‘‘real
and significant harm’’ to the children. Section 46b-59
(b) requires that a person seeking visitation allege spe-
cific and good faith allegations, and show by clear and
convincing evidence, that both a parent-like relation-
ship exists between the person and the minor child and
that denial of visitation would cause ‘‘real and signifi-
cant harm’’ to the minor child. Failure to meet this
burden on either of the two elements warrants denial
of a petition for visitation. Therefore, the court, having
found that no such parent-like relationship exists
between the plaintiff and the children, was not required
to consider whether denial of the petition would cause
‘‘real and significant harm.’’ General Statutes § 46b-59
(b).
In sum, we conclude that the court did not err when
it found that the plaintiff had not satisfied her burden
of showing by clear and convincing evidence that she
has a parent-like relationship with the children and in
denying the plaintiff’s petition for visitation.
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. . . . [T]he court shall grant the right of visitation with any minor
child to any person if the court finds after hearing and by clear and convincing
evidence that a parent-like relationship exists between the person and the
minor child and denial of visitation would cause real and significant harm.’’
2
The defendants, Gregory Grachitorena and Leticia Grachitorena, did not
file a brief in this court. We therefore decide this appeal on the basis of the
record, the plaintiff’s brief and appendix, and the plaintiff’s oral argument.
3
In an affidavit accompanying the petition, the plaintiff averred that the
children were born in 2010 and 2012.
4
During the hearing held on the petition, the plaintiff testified that termina-
tion proceedings began in 2014 and that the parental rights of the children’s
biological parents were terminated in 2017.
5
The record reveals that the defendants did not file appearances in this
matter and did not attend the August 5, 2021 hearing.
6
The plaintiff testified that, at the relevant times, she resided in Tennessee,
Connecticut, and New York.
7
Additionally, the plaintiff argues that the court ‘‘improperly weighed’’
the department’s decision not to consider the plaintiff a resource because
she was not a Connecticut resident. As noted, the court was not required
to consider only the nonexclusive factors enumerated in § 46b-59 (c) and,
therefore, was permitted to consider other relevant factors related to the
plaintiff’s relationship with the children. See Firstenberg v. Madigan, 188
Conn. App. 724, 731, 205 A.3d 716 (2019) (noting that nine factors enumerated
in § 46b-59 (c) are ‘‘nonexclusive’’).