Denardo v. Bergamo

Decision Date18 January 2005
Docket NumberNo. 17200.,17200.
Citation863 A.2d 686,272 Conn. 500
PartiesRichard S. DENARDO, Jr. v. Janet BERGAMO.
CourtConnecticut Supreme Court

Robert S. Kolesnik, Jr., Waterbury, for the appellants (intervening plaintiffs).

Michael K. Conway, for the appellee (defendant).

BORDEN, NORCOTT, KATZ, PALMER and ZARELLA, Js.

BORDEN, J.

The dispositive issue in this appeal1 is whether grandparents, who were granted the right of visitation with respect to a minor child pursuant to General Statutes § 46b-592 prior to this court's decision in Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002), must satisfy the jurisdictional and substantive requirements set forth in Roth when a custodial parent has moved to modify or terminate the visitation order. The intervening plaintiffs, Richard S. Denardo, Sr., and Patricia Denardo,3 appeal from the judgment of the trial court granting the motion of the defendant, Janet Bergamo, to modify and terminate the plaintiffs' visitation rights with respect to the defendant's minor child. The plaintiffs claim that the trial court improperly shifted the burden of proof on the defendant's motion to modify and terminate the plaintiffs' visitation rights from the defendant to the plaintiffs, and, as a result, improperly applied Roth retrospectively. We affirm the judgment of the trial court.

After the plaintiffs were granted permission to intervene in their son's petition for custody and visitation with respect to his daughter, the trial court, Leheny, J., granted the plaintiffs visitation rights with respect to the child pursuant to § 46b-59. Thereafter, relying on this court's subsequent decisions in Roth v. Weston, supra, 259 Conn. 202, 789 A.2d 431, and Crockett v. Pastore, 259 Conn. 240, 789 A.2d 453 (2002), and alleging that the plaintiffs had continued to interfere with her right to make decisions for her child, the defendant moved to modify and terminate the plaintiffs' visitation rights. The trial court, Hon. R. Petroni, judge trial referee, granted the defendant's motion and terminated the plaintiffs' visitation rights. This appeal followed.

The following facts and procedural history are undisputed for purposes of this appeal. The defendant and Richard S. Denardo, Jr., were living together as an unmarried couple when their daughter was born on April 20, 1994. Due to difficulties in their relationship, they ultimately separated in July, 1995. Despite this change in the relationship between the defendant and their son, the plaintiffs, who are the child's paternal grandparents, maintained a cordial relationship with the defendant and spent time with the child throughout the time period following the child's birth and until August, 1998.

In August, 1998, Richard S. Denardo, Jr., filed a petition for custody and visitation with respect to the child. Shortly thereafter, he and the defendant entered into a stipulated temporary agreement that established his visitation schedule along with the requirement that he not allow the plaintiffs unsupervised visitation with the child; this agreement did not prevent the plaintiffs from visiting with the child while her father was present. The plaintiffs subsequently filed a motion for third party intervention pursuant to General Statutes §§ 46b-574 and 46b-59; see footnote 2 of this opinion; and a motion for visitation pendente lite. All parties then entered into a stipulated agreement granting the plaintiffs' motion for intervention and allowing the plaintiffs unsupervised visitation during the child's visitation with her father. The new agreement still prevented the plaintiffs from having unsupervised overnight visits with the child.

The child's parents eventually entered into a stipulation regarding a custody and parenting plan that granted sole custody of the child to the defendant and defined the parents' rights and responsibilities relative to visitation and support. On the same day that the parents entered into the stipulation, the trial court began a hearing on the plaintiffs' motion to modify their visitation, wherein the plaintiffs had requested that they be granted the following rights with respect to the child: (1) assistance with school activities or trips; (2) overnight visits; (3) visitation every Tuesday from 2:35 p.m. to 5 p.m. and every Friday from 2:35 p.m. to 8 p.m.; (4) one full week of visitation during the summer months; (5) visitation on five specific holiday weekends from Sunday at 12 p.m. to Monday at 6 p.m.; and (6) provide day care in the event that the child has the day off from school or camp and neither parent is available. The defendant opposed these requests.

In ruling on the plaintiffs' requests, the trial court, Leheny, J., acknowledged that, "pursuant to § 46b-59, the court must be guided by the best interests of the child according to its best judgment subject to such conditions and limitations as it deems equitable." The trial court also recognized, however, that the United States Supreme Court recently had held in Troxel v. Granville, 530 U.S. 57, 68-69, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), that "there is a presumption that fit parents act in the best interests of their children.... [H]istorically [the law's concept of the family] has recognized that natural bonds of affection lead parents to act in the best interests of their children.... Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the [s]tate to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children."5 (Citation omitted; internal quotation marks omitted.)

The trial court found that "[t]he [plaintiffs had] not allege[d] that [the defendant was] an unfit parent ... [and had] produced no evidence to rebut the presumption that [the defendant did] not act in the best interests of the child." Further, it found "that the [plaintiffs had] intruded upon the right of the [defendant] to make decisions for her child." Nevertheless, the trial court found "that it would be in the best interest of the minor child to visit with the [plaintiffs] during the summer," despite the defendant's objection to the plaintiffs being granted any visitation rights. Accordingly, it ordered that the plaintiffs be granted five days of visitation during the summer but denied the plaintiffs' remaining requests. At the time it made its ruling, the trial court's reliance on the best interest of the child standard was in accord with the judicial gloss that this court had applied to § 46b-59 in Castagno v. Wholean, 239 Conn. 336, 352, 684 A.2d 1181 (1996), which was decided before the Supreme Court's decision in Troxel.6

Following the trial court's order in the present case, this court had occasion in two concurrent cases, namely, Roth v. Weston, supra, 259 Conn. 202, 789 A.2d 431, and Crockett v. Pastore, supra, 259 Conn. 240, 789 A.2d 453, to assess the constitutionality of § 46b-59 in light of the decision of the Supreme Court in Troxel. In Roth, we held that a person seeking visitation rights pursuant to § 46b-59 must satisfy certain jurisdictional and substantive requirements for the statute to be constitutional as applied. See Roth v. Weston, supra, at 222, 229 and 233, 789 A.2d 431. Specifically, we held that for a court to have jurisdiction over a petition for visitation pursuant to § 46b-59 contrary to the wishes of a fit parent, "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 [and] ... 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 [General Statutes] §§ 46b-120 and 46b-129, namely, that the child is `neglected, uncared-for or dependent.' "Id., at 234-35, 789 A.2d 431. We also held that once jurisdiction has been established, "the petitioner must prove these allegations by clear and convincing evidence." Id., at 235, 789 A.2d 431. In Crockett v. Pastore, supra, at 246, 789 A.2d 453, decided the same day as Roth, we reiterated the jurisdictional requirements for a trial court to consider a petition for visitation pursuant to § 46b-59 over the objections of a fit parent. Unlike the present case, neither Roth nor Crockett involved a preexisting court order of visitation. Rather, in both of those cases, the nonparents sought to secure such an order over the objections of the minor child's fit parent.

On the basis of our decisions in Roth and Crockett, the defendant moved to modify and terminate the plaintiffs' visitation. The defendant alleged that the plaintiffs continued to intrude upon her right to make decisions for her child in that, for example, they had contacted a teacher about guitar lessons for the child, and taken the child out of the state during their five days of summer visitation. The trial court, Hon. R. Petroni, judge trial referee, initially modified the order of visitation to clarify that the plaintiffs were not to be involved in decisions for the child concerning educational, religious or medical issues without the defendant's written consent and were not allowed to remove the child from the state, but declined to terminate the plaintiffs' visitation rights.

The defendant then moved to reargue. The trial court granted the defendant's motion to reargue, and subsequently vacated its earlier order and terminated the plaintiffs' visitation. The trial court concluded that the standards set forth in Roth and Crockett were applicable to the defendant's motion to modify and terminate the plaintiffs' visitation, and that the plaintiffs had failed to allege or present evidence that the defendant was an...

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1 cases
  • In re Zoey H.
    • United States
    • Connecticut Court of Appeals
    • July 11, 2018
    ...have recognized the constitutionally protected right of parents to raise and care for their children. See, e.g., Denardo v. Bergamo , 272 Conn. 500, 511, 863 A.2d 686 (2005) ; Crockett v. Pastore , 259 Conn. 240, 246, 789 A.2d 453 (2002) ; Roth v. Weston , [259 Conn. 202, 216, 789 A.2d 431 ......
1 books & journal articles
  • 2005 Connecticut Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 79, 2005
    • Invalid date
    ...crime, meaning that an attempt 81 189 Conn. 346,456 A.2d 305 (1983). 82 Id. at 770. Another retroactivity decision is Denardo v. Bergamo, 272 Conn. 500, 863 A.2d 686 (2005), holding that a prior decision on grandparent visitation, Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002), applies ......

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