Igersheim v. Bezrutczyk ( 2020 )

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SANDRA L. IGERSHEIM v. TIFFANY
M. BEZRUTCZYK
(AC 41738)
Keller, Bright and Beach, Js.
Syllabus
The plaintiff grandmother filed a petition for visitation with her grandchild,
the defendant mother’s minor child, pursuant to statute (§ 46b-59). A
guardian ad litem was appointed for the minor child. The trial court
granted the petition, concluding that the plaintiff had proven by clear
and convincing evidence that a parent-like relationship existed and that
denial of visitation would cause real and significant harm to the minor
child. The defendant appealed to this court and claimed that the trial
court erred in a number of its rulings. The guardian ad litem claimed
on appeal, inter alia, that the trial court lacked subject matter jurisdiction
to consider the petition. Held:
1. The trial court did not have subject matter jurisdiction over the plaintiff’s
petition for visitation, as the petition lacked the specific allegations
necessary to meet the jurisdictional thresholds of § 46b-59 (b); the plain-
tiff’s petition did not contain the required specific, good faith allegations
of real and significant harm, in that other than a general statement that
denial of visitation would jeopardize a relationship with the minor child’s
grandparents, the petition contained no specific references to harm,
much less specific allegations of harm that the minor child would endure
if visitation were denied.
2. This court declined to review the defendant’s claims, the defendant having
failed to adequately brief those claims.
Argued February 5—officially released May 26, 2020
Procedural History
Petition for visitation with the defendant’s minor
child, brought to the Superior Court in the judicial
district of Tolland, where the court, K. Murphy, J.,
granted the plaintiff’s petition and rendered judgment
thereon; thereafter, the court granted the plaintiff’s
motion for reconsideration, and the defendant appealed
to this court. Reversed; judgment directed.
Keith Yagaloff, for the appellant (defendant).
Maria F. McKeon, for the appellee (plaintiff).
David A. McGrath, with whom was Justine Rakich-
Kelly, guardian ad litem, for the appellee (guardian
ad litem).
Opinion
BEACH, J. The defendant, Tiffany M. Bezrutczyk,
appeals from the trial court’s judgment granting the
petition filed by the plaintiff, Sandra L. Igersheim, for
visitation with her grandson, the defendant’s minor
child. The defendant claims that the court erred in a
number of its rulings. We conclude that the defendant
did not adequately brief these claims and, therefore,
we decline to review them. See Clelford v. Bristol, 150
Conn. App. 229, 233, 90 A.3d 998 (2014). We do, how-
ever, consider the claims raised in the brief of the court-
appointed guardian ad litem1 that the court (1) lacked
subject matter jurisdiction to consider the petition, (2)
improperly concluded that the denial of visitation to
the plaintiff would cause real and significant harm, and
(3) impermissibly precluded testimony and recom-
mendations by the guardian ad litem. We agree with the
guardian ad litem with respect to the issue of subject
matter jurisdiction and, accordingly, reverse the judg-
ment of the court and remand the case with direction
to dismiss the petition.2
The record reveals the following relevant facts and
procedural history. On August 23, 2017, the plaintiff,
then unrepresented by counsel, served a verified peti-
tion for visitation with the minor child on her daughter,
the defendant. On the petition form,3 the plaintiff, inter
alia, checked the boxes next to the statements: ‘‘I have
a relationship with the child(ren) that is parent-like
. . . (State specifically how your relationship is par-
ent-like)’’ and ‘‘Denial of visitation will cause real and
significant harm to the child(ren) . . . (State specifi-
cally what harm would be caused to the child(ren) by
a denial of visitation) . . . .’’ As to the parent-like
relationship, the plaintiff wrote: ‘‘[B]een [taking] care
of [the minor child] up until this past April when he
moved back with his mom.’’ As to the harm, the plaintiff
wrote: ‘‘Jeopardize relationship with grandparents.’’
The first hearing on the petition for visitation com-
menced on October 11, 2017, at which the defendant
orally moved to dismiss the petition for lack of subject
matter jurisdiction based on insufficient allegations.
The court did not rule on the motion and, instead, con-
tinued the matter for three weeks. On November 9,
2017, the plaintiff, then represented by counsel, filed
an amendment to her petition. The amendment alleged,
inter alia, dates during which the minor child lived with
the plaintiff and the manner in which the plaintiff cared
for the minor child during those instances, medical con-
ditions from which the minor child suffered, and possi-
ble instances of neglect, abuse, and/or abandonment in
the defendant’s care. Regarding harm, the amendment
asserted that ‘‘[d]enial of the visitation will cause real
and significant harm to the child because [the plaintiff]
has been the only constant stable force in [the minor
child’s] life and has always kept him safe. She is the
only one who can ensure that he is safe, well-nourished
and psychologically protected.’’ This amendment was
not verified.
Also on November 9, 2017, the plaintiff filed a motion
for the appointment of a guardian ad litem. The motion
requested that the court ‘‘appoint a guardian ad litem
. . . to determine whether [the minor child] would be
significantly harmed if the court were to deny the [plain-
tiff’s] request for [visitation].’’ On the same day, the
Children’s Law Center, Inc., was appointed guardian ad
litem by agreement of the parties. The Children’s Law
Center, Inc., entered an appearance as guardian ad litem
on November 15, 2017; Justine Rakich-Kelly entered an
individual appearance as guardian ad litem on January
17, 2018.
After the hearings had concluded, the trial court
issued its memorandum of decision in which it granted
the plaintiff’s petition for visitation, concluding that the
plaintiff had proven by clear and convincing evidence
that a parent-like relationship existed and ‘‘denial of
the visitation would cause real and significant harm to
[the minor child].’’ Although judgment was rendered
in her favor, the plaintiff thereafter filed a motion for
reconsideration and/or clarification regarding specific
requests contained in the petition. The court granted
the motion and issued an order stating that it would
‘‘consider argument regarding appropriate orders to be
entered in light of the court’s findings.’’ This appeal
followed.
‘‘At the outset, we note our well settled standard
of review for jurisdictional matters. A determination
regarding a trial court’s subject matter jurisdiction is a
question of law. When . . . the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in
the record. . . . To determine whether the court had
jurisdiction over a petition for visitation, we compare
the allegations of the petition to the statutorily pre-
scribed jurisdictional requirements.’’ (Citation omitted;
internal quotation marks omitted.) Firstenberg v. Madi-
gan, 188 Conn. App. 724, 730, 205 A.3d 716 (2019).
The statutory jurisdictional requirements relevant to
the present case are prescribed in General Statutes
§ 46b-59,4 the third-party visitation statute. Section 46b-
59 (b) provides: ‘‘Any person may submit a verified
petition to the Superior Court for the right of visita-
tion 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,5 and (2) denial of visitation would cause real
and significant harm. Subject to subsection (e) of this
section, the 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.’’ (Footnote added.)
At the October 11, 2017 hearing, the first court hear-
ing, the defendant orally moved to dismiss the plain-
tiff’s petition for lack of subject matter jurisdiction. She
argued that the petition did not adequately allege how
the denial of visitation would cause real and significant
harm to the minor child, and this failure to satisfy the
statutory requirements deprived the court of jurisdic-
tion to hear the petition. The following procedural his-
tory is relevant to our disposition of this matter.
The defendant’s counsel orally moved to dismiss at
the outset of the hearing. The court then explained to
the plaintiff6 the implications of the motion to dismiss
and gave her an opportunity to respond. The court
asked the plaintiff: ‘‘So, do you have any other—I mean
this is an important piece, and we may not have a
hearing after this depending on what your answer is. I
probably would let you amend your allegation if you
could make a sufficient indication, but if this is your
only basis, I probably will dismiss the matter as
requested. So, I mean do you have any other reason to
believe that there’s some type of real or significant harm
to [the minor child] by withholding your contact with
him?’’ In response, the plaintiff described concerns that
she had regarding the defendant’s husband.7 The defen-
dant’s counsel contended that the allegations did not
address adequately the issue of harm and renewed the
defendant’s claim that the allegations did not comply
with the statutory requirements.
The court expressed its concern ‘‘that somehow the
child’s being used . . . to get back at the [plaintiff].
And that causes me concern, and that may be a basis
under paragraph 6 [the harm prong of § 46b-59 (b) (2);
see General Statutes § 46b-120 (6)]. But what we’re
going to do is continue the matter three weeks. I expect
[the defendant] and [the plaintiff] to at least attempt in
a civil way to have a conversation. If they can’t, then
I will rule on this and we may continue the hearing on
the next court date.’’ It continued: ‘‘Both parties should
be able to, to resolve this matter. And I had expected
before today that that would have occurred. It has not
occurred. It gives the court great concern, and I may
allow [the plaintiff] to amend her pleading based on
whatever happens between now and the next court
date.’’ Prior to the next hearing on November 9, 2017,
the plaintiff hired an attorney and filed an unverified
amended petition for visitation.
On appeal, the guardian ad litem argues that the veri-
fied petition filed by the plaintiff in August, 2017, failed
to allege with particularity how a denial of visitation
would cause real and significant harm to the minor
child and thereby failed to satisfy the statutory require-
ments of § 46b-59 (b), consequently depriving the court
of subject matter jurisdiction. Because we agree with
the guardian ad litem as to this jurisdictional claim and
remand the case accordingly, we address only this
claim.
‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case 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 atten-
tion. . . . The requirement of subject matter jurisdic-
tion cannot be waived by any party and can be raised
at any stage in the proceedings.’’ (Internal quotation
marks omitted.) Broadnax v. New Haven, 270 Conn.
133, 153, 851 A.2d 1113 (2004). ‘‘A possible absence
of subject matter jurisdiction must be addressed and
decided whenever the issue is raised. The parties cannot
confer subject matter jurisdiction on the court, either
by waiver or by consent.’’ Sadloski v. Manchester, 228
Conn. 79, 84, 634 A.2d 888 (1993). ‘‘It is axiomatic that
once the issue of subject matter jurisdiction is raised,
it must be immediately acted upon by the court. . . .
Our Supreme Court has explained that once raised . . .
the question [of subject matter jurisdiction] must be
answered before the court may decide the case.’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) Fennelly v. Norton, 103 Conn. App.
125, 136–37, 931 A.2d 269, cert. denied, 284 Conn. 918,
931 A.2d 936 (2007).
When the defendant’s counsel made the oral motion
to dismiss for lack of subject matter jurisdiction on
October 11, 2017, the court was required to address the
jurisdictional issue. Once the motion to dismiss is made,
‘‘all other action in the case must come to a halt until
such a determination is made.’’ (Internal quotation
marks omitted.) Id., 138. Furthermore, our Supreme
Court has explicitly held that the court cannot consider
any amended pleading before ruling on the motion to
dismiss. See Federal Deposit Ins. Corp. v. Peabody,
N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996) (inap-
propriate for court to consider amended third party
complaint rather than initial complaint, when acting on
state’s motion to dismiss for lack of subject matter
jurisdiction); Gurliacci v. Mayer, 218 Conn. 531, 545,
590 A.2d 914 (1991) (‘‘[b]y considering the motion to
amend prior to ruling on the challenge to the court’s
subject matter jurisdiction, the court acted inconsis-
tently with the rule that, as soon as the jurisdiction of
the court to decide an issue is called into question, all
other action in the case must come to a halt until such
a determination is made’’).
In light of the foregoing law, we now examine the
initial, verified petition filed by the plaintiff to determine
whether the court had subject matter jurisdiction. Exer-
cising plenary review of the issue, we conclude that
the initial, verified petition did not contain the required
specific, good faith allegations of real and significant
harm. Section 46b-59 (a) (2) defines ‘‘ ‘[r]eal and signifi-
cant harm’ ’’ to mean ‘‘that the minor child is neglected,
as defined in section 46b-120, or uncared for, as defined
in said section.’’8 Other than a general statement that
denial of visitation would ‘‘[j]eopardize [a] relationship
with [his] grandparents,’’ the plaintiff’s verified petition
contained no specific references to harm, much less
specific allegations of harm that the minor child would
endure if visitation were denied. See Fuller v. Baldino,
176 Conn. App. 451, 460, 168 A.3d 665 (2017). The peti-
tion, then, lacked the specific allegations necessary to
meet the jurisdictional thresholds of § 46b-59 (b). Con-
sequently, we conclude that the trial court did not have
subject matter jurisdiction over the plaintiff’s petition
for visitation.
The judgment is reversed and the case is remanded
with direction to render judgment dismissing the peti-
tion for visitation.
In this opinion the other judges concurred.
1
Practice Book § 67-13 provides that ‘‘[i]n family and juvenile matters and
other matters involving minor children . . . counsel for the guardian ad
litem shall, within ten days of the filing of the appellee’s brief, file either:
(1) a brief, (2) a statement adopting the brief of either the appellant or an
appellee, or (3) a detailed statement that the factual or legal issues on appeal
do not implicate the child’s interests.’’ In this matter, the guardian ad litem
chose to file a brief.
2
In light of our resolution of the guardian ad litem’s jurisdictional claim,
we need not reach the merits of her other two claims.
3
The form, JD-FM-221, is entitled ‘‘Verified Petition for Visitation—Grand-
parents [and] Third Parties.’’
4
‘‘Section 46b-59 was amended in 2012 to essentially codify the judicial
gloss the Supreme Court put on the then existing version of § 46b-59 in
Roth [v. Weston, 259 Conn. 202, 789 A.2d 431 (2002)]. In Roth, the court
concluded that, without the proper gloss, § 46b-59, as enacted at that time,
would be subject to application in a manner that would be unconstitutional.
. . . The court concluded that implicit in the statute was a rebuttable pre-
sumption that visitation that is opposed by a fit parent is not in the child’s
best interests. . . . Additionally, the court concluded that in order to avoid
constitutional infirmity, a petition for visitation must include specific, good
faith allegations both that the petitioner has a parent-like relationship with
the child and that the denial of visitation would cause real and significant
harm to the child.’’ (Citations omitted.) Firstenberg v. Madigan, supra, 188
Conn. App. 730–31 n.5.
5
General Statutes § 46b-59 (d) provides that ‘‘[i]n determining whether
a parent-like relationship exists between a grandparent seeking visitation
pursuant to this section and a minor child, the Superior Court may consider,
in addition to the factors enumerated 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.’’
General Statutes § 46b-59 (c) provides: ‘‘In determining whether a parent-
like relationship exists between the person and the minor child, the Superior
Court may consider, but shall not be limited to, the following factors: (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 disrupted; (3) The specific parent-like activities of the person
seeking visitation toward the minor child; (4) Any evidence that the person
seeking visitation has unreasonably 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.’’
6
At this time, the plaintiff was self-represented.
7
The plaintiff alleged, inter alia, that the defendant’s husband was ‘‘very
rough playing with [the minor child].’’
8
Pursuant to General Statutes § 46b-120 (4), ‘‘[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, educa-
tionally, emotionally or morally, or (C) is being permitted to live under
conditions, circumstances or associations injurious to the well-being of the
child . . . .’’
Pursuant to § 46b-120 (6), ‘‘[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. . . .’’