Clements v. Jones

Decision Date20 August 2002
Docket Number(AC 21263)
Citation803 A.2d 378,71 Conn. App. 688
CourtConnecticut Court of Appeals

Schaller, Spear and Hennessy, Js.

James A. Trowbridge, for the appellant (defendant).

Joann Clements, pro se, the appellee (plaintiff).



The defendant, Loretta Jones, the mother of a minor child, Devon, appeals from the judgment of the trial court awarding visitation to the plaintiff, Joann Clements, the paternal grandmother, pursuant to General Statutes § 46b-59. The defendant claims on appeal that the court improperly (1) violated her fourteenth amendment right to family privacy by requiring her to make her child available to the plaintiff and (2) applied § 46b-59 because the plaintiff otherwise had access to her grandchild. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. The defendant and Allen Spears, the plaintiff's son, are the parents of the minor child, who was born on June 6, 1995. The defendant and Spears, who never married, separated after the birth of the child. The child has lived with and continues to reside with the defendant. The plaintiff has had regular contact with the child since birth, in the course of baby-sitting, overnight visits at her home, and driving the child to and from school.

On March 6, 1998, the plaintiff filed an application seeking visitation with the child. The plaintiff, and members of her family, also filed numerous complaints with the department of children and families, alleging that the defendant had neglected or abused the child. On April 27, 1998, Spears filed a petition for custody of the child. The plaintiffs application and the petition filed by Spears were consolidated, and the plaintiff and Spears were treated as coplaintiffs.1 After a hearing, the court entered an order granting the plaintiff visitation rights on Wednesdays before and after school, subject to the defendant's vacation schedule and later modification. This appeal followed.

On appeal, the defendant asserts two claims. First, she claims that the court violated her fourteenth amendment right to family privacy by requiring her to make her child available to the plaintiff pursuant to § 46b-59. With regard to that claim, the defendant argues that § 46b-59 impermissibly infringes on her constitutional right to raise her child. Second, the defendant claims that the court improperly applied § 46b-59 because the plaintiff already had access to the child.

We conclude that the present appeal is controlled by Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002). In accordance with Roth, we first address a jurisdictional issue that lies at the threshold of the present appeal. 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 conclusions 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." (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 258 Conn. 680, 683, 784 A.2d 347 (2001).

In Roth, the defendant claimed that § 46b-59 violated the rights of parents to raise their children as protected by the due process clause of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. Roth v. Weston, supra, 259 Conn. 209-10. Our Supreme Court noted that whether § 46b-59 is constitutional under the due process clause of the fourteenth amendment and article first, § 8, was an important issue of first impression.2 Id., 205. The Roth court went on to frame the issue in light of prior rulings by the United States Supreme Court and the Connecticut Supreme Court, noting that "[t]he dispositive issue on appeal is whether, in light of the United States Supreme Court decision in [Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)

], § 46b-59, as interpreted by this court in Castagno v. Wholean, 239 Conn. 336, 339-52, 684 A.2d 1181 (1996), is unconstitutional, either facially or as applied in this case." Roth v. Weston, supra, 209.

Applying a strict scrutiny analysis to § 46b-59; see id., 218; the Roth court stated that "[o]rdinarily, [i]f literal construction of a statute raises serious constitutional questions, we are obligated to search for a construction that will accomplish the legislature's purpose without risking the statute's invalidity.... That adjudicative technique, however, presumes that an alternative, constitutional interpretation remains available. As interpreted by Castagno, the statute currently requires no more than the fact that the family had been disrupted. Without proper gloss, the statute would be subject to application in a manner that would be unconstitutional.

"We have the option simply to invalidate the statute. That course, however, would leave adrift the significant interests of the children harmed by the loss of visitation with a loved one, and would cause significant uncertainty concerning the rights of, and the limitations upon those persons seeking visitation. Moreover, such a decision would entail significant questions concerning the effect of the invalidation of § 46b-59 upon related provisions of [General Statutes] §§ 46b-56 and 46b-57.... We therefore delineate a scheme consistent with the aforestated principles that will allow the statute to continue to function within the bounds of the constitution." (Citations omitted; emphasis in original; internal quotation marks omitted.) Roth v. Weston, supra, 259 Conn. 233.

"Implicit in the statute is ... a rebuttable presumption that visitation that is opposed by a fit parent is not in a child's best interest. In sum, therefore, we conclude 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 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 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.

"Second, once these high jurisdictional hurdles have been overcome, the petitioner must prove these allegations by clear and convincing evidence. Only if that enhanced burden of persuasion has been met may the court enter an order of visitation. These requirements thus serve as the constitutionally mandated safeguards against unwarranted intrusions into a parent's authority." (Internal quotation marks omitted.) Roth v. Weston, supra, 259 Conn. 234-35.

With regard to the harm prong of the jurisdictional test, we note that earlier in the Roth opinion, the Supreme Court delineated more specifically the types of harm that it referred to in the summation of the jurisdictional test. Particularly, the Roth court stated that "it 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.) Id., 224. Additionally, the Roth court also noted that "[a] more difficult issue is whether the child's own complementary interest in preserving relationships that serve his or her welfare and protection can also constitute a compelling interest that warrants intruding upon the fundamental rights of parents to rear their children.... Specifically, we consider whether something less than an allegation and proof in support of abuse, neglect or abandonment will suffice to permit an intrusion." (Citations omitted; emphasis in original.) Id., 225.

In answering that question, the court stated that "the only level of emotional harm that could justify court intervention is one that is akin to the level of harm that would allow the state to assume custody under General Statutes §§ 46b-120 and 46b-129—namely, that the child is `neglected, uncared-for or dependent' as those terms have been defined. We are persuaded, therefore, that an allegation, along with proof thereof, that the parent's decision regarding visitation will cause the child to suffer real and substantial emotional harm likewise presents a compelling state interest that will permit interference with parental rights...." Roth v. Weston, supra, 259 Conn. 226. Thus, when read as a whole, the harm prong in Roth allows for allegations of both physical and emotional harm. With the Roth test before us, we normally would apply it to the present appeal and reach a conclusion as to the trial court's jurisdiction. In the present case, as in Roth itself, however, we cannot do so because "[t]hat approach ... would be manifestly unfair, because these requirements are newly stated, and the [plaintiff] could not have anticipated their adoption."...

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13 cases
  • Fennelly v. Norton
    • United States
    • Connecticut Court of Appeals
    • 7 Agosto 2007
    ...allowing petitioning parties to supplement their pleadings under these circumstances. In fact, Roth, Crockett and Clements v. Jones, 71 Conn. App. 688, 803 A.2d 378 (2002), specifically allowed, in effect, supplementation and consideration of the evidence placed before the trial court becau......
  • Martocchio v. Savoir, 35741.
    • United States
    • Connecticut Court of Appeals
    • 14 Octubre 2014
    ...omitted.) Id., at 234–35, 120 S.Ct. 2054 ; see also Crockett v. Pastore, 259 Conn. 240, 789 A.2d 453 (2002) ; Clements v. Jones, 71 Conn.App. 688, 690–93, 803 A.2d 378 (2002).6 Subsequent cases have explicated our jurisprudence with respect to § 46b–59. For example, in Denardo v. Bergamo, 2......
  • Romeo v. Bazow
    • United States
    • Connecticut Court of Appeals
    • 21 Enero 2020
    ...were insufficient under Roth to establish subject matter jurisdiction. Id. The court in Fuller relied on Clements v. Jones , 71 Conn. App. 688, 695, 803 A.2d 378 (2002), in which this court considered the plaintiff's allegations that she "often received the child in an ill state, apparently......
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    • United States
    • Connecticut Court of Appeals
    • 15 Febrero 2011
    ...matter jurisdiction and the application must be dismissed”), cert. denied, 284 Conn. 918, 931 A.2d 936 (2007); Clements v. Jones, 71 Conn.App. 688, 696, 803 A.2d 378 (2002). We therefore must examine the record to determine whether the application contained specific, good faith allegations ......
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