Hunter v. Shrestha ( 2020 )

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CRAIG B. HUNTER ET AL. v. SATYAM S.
SHRESTHA
(AC 41751)
Alvord, Moll and Beach, 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 child of the defendant. In dismissing the
petition, the trial court determined that the plaintiffs failed to set forth
the specific, good faith allegations required to satisfy the jurisdictional
pleading requirements set forth in Roth v. Weston (259 Conn. 202),
specifically, that the plaintiffs have a parent-like relationship with the
child and that the denial of visitation will cause real and significant
harm to the child. Held that the trial court properly dismissed the plain-
tiffs’ petition for lack of subject matter jurisdiction, the plaintiffs having
failed to plead the requisite level of harm under the second element of
Roth; although the plaintiffs alleged that the denial of visitation would
cut the child off from the maternal side of her family, have the effect
of the child feeling that the plaintiffs abandoned her, compound the
child’s early childhood trauma and harm her, the plaintiffs did not allege
with sufficient specificity how the child would be harmed, and, without
more, those allegations did not rise to the level of abuse, neglect or
abandonment contemplated by Roth.
Argued October 8, 2019—officially released January 21, 2020
Procedural History
Petition for visitation with the defendant’s minor
child, brought to the Superior Court in the judicial dis-
trict of Hartford, where the court, Prestley, J., denied
the defendant’s motion to dismiss; thereafter, the court
granted the defendant’s motion for reconsideration and
rendered judgment dismissing the petition, from which
the plaintiffs appealed to this court. Affirmed.
Barbara J. Ruhe, for the appellants (plaintiffs).
Tanya T. Dorman, for the appellee (defendant).
Opinion
ALVORD, J. The plaintiffs, Craig B. Hunter and Sarah
Megan Berthold, appeal from the judgment of the trial
court dismissing their third-party petition for visitation
pursuant to General Statutes § 46b-591 and Practice
Book § 25-42 as to the minor child of the defendant,
Satyam S. Shrestha. Because we conclude that the plain-
tiffs’ petition 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 following facts and procedural history are neces-
sary to our resolution of the plaintiffs’ appeal. On Janu-
ary 26, 2017, the then self-represented plaintiffs3 filed
a third-party petition seeking visitation with the defen-
dant’s child.4 The plaintiffs checked the box on the
petition stating that they ‘‘have a relationship with the
child(ren) that is parent-like.’’5 The plaintiffs alleged
that they had been the child’s ‘‘primary caregivers for
three years prior to July 15, 2016,’’ and that for the first
one and one-half years of that time, the child lived
with the plaintiffs seven days per week, and for the
remainder of that time, the child lived with the plaintiffs
five days per week. The plaintiffs checked the box stat-
ing that ‘‘[d]enial of visitation will cause real and signifi-
cant harm to the child(ren).’’ The plaintiffs alleged that
‘‘[i]t would cut [the child] off from all ties with her
maternal side of the family. [The child’s] mother aban-
doned her when she was [one year old] and we have
been consistent and parent-like caregivers in her life
ever since. Denying visitation will have the effect of
[the child] feeling that we have abandoned her and
compound her early childhood trauma [and] harm her.’’
The plaintiffs also added, ‘‘see attached [s]upplements.’’
In the attached supplement, the plaintiffs alleged that
prior to the child’s birth, they ‘‘provided extensive finan-
cial and emotional support’’ to the child’s parents. The
plaintiffs alleged that they were present from the time
of the child’s birth and infancy and ‘‘provided her with
parent-like care.’’ The plaintiffs alleged that they ‘‘have
had a continuous parent-like relationship with [the
child] on both coasts of the United States throughout
her life’’ and that ‘‘[s]he began to live with [them] several
days a week before she first attended school.’’ The
plaintiffs alleged that they had ‘‘continuously supported
and assisted’’ the defendant in the child’s education and
spiritual growth. Lastly, the plaintiffs alleged that the
defendant recently had deprived the child and the plain-
tiffs of the relationship and companionship they had
previously enjoyed, and that they had been deprived of
contact with the child, which had seriously disrupted
the parent-like relationship with the child that the defen-
dant had previously encouraged. The plaintiffs sought,
inter alia, weekly visitation with the child, including
overnight visitation every other weekend and weekday
visitation twice a week on alternate weeks, and permis-
sion to communicate with the child on a daily basis.
Before the trial court, the defendant challenged the
court’s subject matter jurisdiction over the petition.
Ultimately, the trial court found that the plaintiffs had
failed to set forth the specific, good faith allegations
required by Roth v. Weston, supra, 259 Conn. 234–35,
namely, that ‘‘the petitioner has a relationship with the
child that is similar in nature to a parent-child relation-
ship’’ and that ‘‘denial of the visitation will cause real
and significant harm to the child.’’ Accordingly, the trial
court dismissed the petition for lack of subject matter
jurisdiction. This appeal followed.
The dispositive issue on appeal is whether the trial
court lacked subject matter jurisdiction over the plain-
tiffs’ petition.6 We conclude that the plaintiffs failed
to plead the requisite level of harm under the second
element of Roth, and, therefore, the court correctly
dismissed the petition for lack of subject matter juris-
diction.7
We first set forth relevant principles of law and our
standard of review. It is well established that ‘‘[a] court
lacks discretion to consider the merits of a case [or
claim] over which it is without jurisdiction . . . . The
objection of want of jurisdiction may be made at any
time . . . [a]nd the court or tribunal may act on its own
motion, and should do so when the lack of jurisdiction
is called to its attention. . . . The requirement of sub-
ject matter jurisdiction cannot be waived by any party
and can be raised at any stage in the proceedings.’’
(Internal quotation marks omitted.) Warner v. Bicknell,
126 Conn. App. 588, 596, 12 A.3d 1042 (2011); see id.,
594 (‘‘[O]nce the question of lack of jurisdiction of a
court is raised, [it] must be disposed of no matter in
what form it is presented. . . . The court must fully
resolve it before proceeding further with the case.’’
[Internal quotation marks omitted.]). ‘‘Because a chal-
lenge to the jurisdiction of the court presents a question
of law, our review of the court’s legal conclusion is
plenary.’’ (Internal quotation marks omitted.) Fuller v.
Baldino, 176 Conn. App. 451, 457, 168 A.3d 665 (2017).
In Roth v. Weston, supra, 259 Conn. 228, our Supreme
Court recognized that the ‘‘constitutionally protected
interest of parents to raise their children without inter-
ference undeniably warrants deference and, absent a
powerful countervailing interest, protection of the
greatest possible magnitude.’’ To safeguard parents’
rights against unwarranted intrusions into their author-
ity, 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 [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 peti-
tion.’’ 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.
When faced with a motion to dismiss a petition for
visitation on the basis that it fails to allege the jurisdic-
tional elements set forth in Roth, ‘‘the trial court is
required . . . to scrutinize the [petition] and to deter-
mine whether it contains specific, good faith allegations
of both relationship and harm. . . . If the [petition]
does not contain such allegations, the court lacks sub-
ject matter jurisdiction and the [petition] must be dis-
missed.’’ (Citations omitted; footnote omitted.) Fen-
nelly v. Norton, 103 Conn. App. 125, 142, 931 A.2d 269,
cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).
As stated previously, the second element of Roth
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.’ ’’8 Roth v. Wes-
ton, supra, 259 Conn. 235; see also Firstenberg v. Madi-
gan, 188 Conn. App. 724, 735, 205 A.3d 716 (2019) (‘‘[t]he
statute is clear and unambiguous that a petition for
visitation 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 unquestionable 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, 224. The court described as the
‘‘more difficult issue . . . 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 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.
In the present case, the plaintiffs allege that denial
of visitation ‘‘would cut [the child] off from all ties with
her maternal side of the family. [The child’s] mother
abandoned her when she was [one year old] and we
have been consistent and parent-like caregivers in her
life ever since. Denying visitation will have the effect
of [the child] feeling that we have abandoned her and
compound her early childhood trauma [and] harm her.’’
We first address the allegation that denial of visitation
would cut the child off from her maternal side of the
family. Although it may not be in the child’s best interest
not to share a relationship with extended family, this
allegation is not commensurate with the level of harm
contemplated in Roth. Second, the plaintiffs allege that
denying visitation will have the effect of the child feeling
that they have abandoned her, citing the early abandon-
ment by the child’s mother. Again, while the absence
of a parent and maternal family members could be
detrimental to the child, it does not rise to the level of
harm set forth in § 46b-120. See, e.g., Fuller v. Baldino,
supra, 176 Conn. App. 459 (allegations that plaintiff has
‘‘very strong bond’’ with child and that child ‘‘suffers’’
and is ‘‘very emotional’’ when unable to see him do not
rise to level of neglect, abuse or abandonment [internal
quotation marks omitted]); Clements v. Jones, 71 Conn.
App. 688, 695–96, 803 A.2d 378 (2002) (holding insuffi-
cient allegations ‘‘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 interest of the
child’’). Finally, the plaintiffs’ allegation that denying
visitation will ‘‘compound [the child’s] early childhood
trauma [and] harm her’’ ignores the requirement that
facts must be pleaded with sufficient specificity to war-
rant the court’s intrusion. The plaintiffs do not allege
how the child will be harmed and, without more, these
allegations do not rise to the level of abuse, neglect, or
abandonment contemplated by Roth. Accordingly, the
trial court properly determined that the plaintiffs’ peti-
tion failed to allege the second jurisdictional element
set forth in Roth and properly dismissed the petition
for lack of subject matter jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 46b-59 provides in relevant part: ‘‘(b) 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
Practice Book § 25-4 provides: ‘‘Every application or verified petition in
an action for visitation of a minor child, other than actions for dissolution
of marriage or civil union, legal separation or annulment, shall state the
name and date of birth of such minor child or children, the names of the
parents and legal guardian of such minor child or children, and the facts
necessary to give the court jurisdiction. An application brought under this
section shall comply with Section 25-5. Any application or verified petition
brought under this Section shall be commenced by an order to show cause.
Upon presentation of the application or verified petition and an affidavit
concerning children, the judicial authority shall cause an order to be issued
requiring the adverse party or parties to appear on a day certain and show
cause, if any there be, why the relief requested in the application or verified
petition should not be granted. The application or verified petition, order
and affidavit shall be served on the adverse party not less than twelve days
before the date of the hearing, which shall not be held more than thirty
days from the filing of the application or verified petition.’’
3
Counsel for the plaintiffs filed an appearance on May 4, 2017.
4
The plaintiffs alleged in their petition that they are the grandparents of
the child. In the defendant’s memorandum of law in support of his motion
to dismiss the petition, he represented that Hunter is the child’s maternal
grandfather, and Berthold is the child’s maternal stepgrandmother.
5
As with other family matters, the Judicial Branch provides a form, JD-
FM-221, which a nonparent may choose to use to seek visitation with a child.
6
On appeal to this court, the plaintiffs claimed that a number of procedural
irregularities improperly led to the dismissal of their petition for visitation.
The plaintiffs’ briefing did not address the merits of the court’s determination
regarding its subject matter jurisdiction. Accordingly, we provided the par-
ties with an opportunity to file supplemental briefing on the question of
‘‘whether the plaintiffs’ petition satisfies the threshold requirements for the
trial court to acquire subject matter jurisdiction pursuant to . . . § 46b-
59?’’ The parties filed their supplemental briefs on November 15, 2019.
Because we conclude that the trial court lacked subject matter jurisdiction
over the petition, we do not address the procedural irregularities raised by
the plaintiffs.
7
Accordingly, we need not address whether the court properly determined
that the plaintiffs failed to allege the first Roth element.
8
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. . . .’’