Fennelly v. Norton

Citation931 A.2d 269,103 Conn.App. 125
Decision Date07 August 2007
Docket NumberNo. 27132.,27132.
CourtConnecticut Court of Appeals
PartiesGene FENNELLY et al. v. Emma NORTON.

Jeffrey D. Ginzberg, Seymour, for the appellants (plaintiffs).

Leslie I. Jennings-Lax, with whom was Andrew I. Schaffer, for the appellee (defendant).



In Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002), our Supreme Court held that the fundamental right of a parent to make child rearing decisions mandates that when a nonparent seeks visitation, that party must allege and prove, by clear and convincing evidence, a relationship with the child that is similar in nature to a parent-child relationship, and that denial of the visitation would cause real and significant harm to the child. In this appeal, we consider that precedent within the procedural context of a motion to dismiss.

The plaintiffs, Gene Fennelly and Sharon Fennelly, are the paternal grandparents of the two minor children of the defendant, Emma Norton. They appeal from the judgment of the trial court granting the defendant's motion to dismiss for lack of subject matter jurisdiction. On appeal, the plaintiffs paradoxically claim that they satisfied the jurisdictional requirements enunciated in Roth and that Public Acts 2005, No. 05-258 (P.A. 05-258), "rendered . . . Roth . . . inapplicable" to their application for visitation. We affirm the judgment of the trial court.

The relevant facts are not disputed. The defendant and the plaintiffs' son, Steven Fennelly (father), are the biological parents of the minor children.1 Their first child, Ciara, was born on July 15, 1995. For a period of sixteen months beginning in April, 1997, the defendant, the father and Ciara lived with the father's sister, Kristin Ericsson, in Nashua, New Hampshire. In August, 1998, the defendant enrolled as a full-time college student in Connecticut and moved to Ansonia. At that time, the father and Ciara moved in with the plaintiffs, who also resided in Nashua. That arrangement continued for approximately five months. In January, 1999, the father and Ciara joined the defendant in Connecticut. A second child, Aiden, was born on August 22, 2000.

The defendant and the father separated in 2003, which was precipitated by the father's drug addiction, and the defendant commenced a custody action soon thereafter. In May, 2005, the court granted the defendant sole custody of the children. No visitation orders entered, as the father was incarcerated at that time.

The plaintiffs filed an application for visitation on August 16, 2005. It consisted solely of a standard custody-visitation application form on which they listed the name and date of birth of each minor child and checked four boxes.2 The application contained no specific factual allegations. On September 26, 2005, the defendant moved to dismiss the plaintiffs' application for lack of subject matter jurisdiction. Following a November 3, 2005 hearing on the matter at which the plaintiffs and Ericsson testified, the court concluded that the plaintiffs failed to prove, by clear and convincing evidence, that they had a relationship with the children similar in nature to a parent-child relationship and that denial of the visitation would cause real and significant harm to the children. As a result, the court granted the defendant's motion to dismiss and rendered judgment accordingly. From that judgment, the plaintiffs appeal. Additional facts will be set forth as necessary.


Before considering the plaintiffs' specific claims, we briefly examine the precedent applicable to the present appeal. In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the United States Supreme Court addressed the constitutionality of a Washington statute governing nonparent visitation. In that case, "the plaintiffs, the paternal grandparents, sought visitation with their two granddaughters in excess of [the one short visit per month that] the defendant, the children's mother, had allowed.... The defendant and the plaintiffs' son, the father of the children, had never married.... After the plaintiffs' son and the defendant ended their relationship, the plaintiffs' son committed suicide.... The defendant married another man, who formally adopted the children.... In Troxel, the Washington Superior Court ordered that the grandparents be permitted visitation with their granddaughters for one weekend per month, one week during the summer, and four hours on both of the petitioning grandparents' birthdays.... On appeal, the Washington Appellate Court reversed the trial court's visitation order and dismissed the grandparents' petition for visitation.... The Washington Supreme Court affirmed the Appellate Court's judgment that the grandparents could not obtain visitation of their grandchildren pursuant to a statute that allowed any person to petition for visitation rights at any time and authorized the Washington state Superior Courts to grant such rights whenever visitation may serve in the child's best interests. . . .

"The United States Supreme Court affirmed the judgment of the Washington Supreme Court, holding that the statute, as applied in that case, violated the due process clause of the fourteenth amendment to the United States constitution, because it was an infringement on [the defendant's] fundamental right to make decisions concerning the care, custody, and control of her two daughters. . . . In support of this determination, the court reasoned that Washington's breathtakingly broad statute permitted a decision concerning visitation made by a fit custodial parent to be overruled on the basis of a Superior Court judge's determination that visitation with a third party would be in the child's best interests." (Citations omitted; internal quotation marks omitted.) In re Jeisean M., 270 Conn. 382, 393-94, 852 A.2d 643 (2004).

Our Supreme Court subsequently considered the constitutionality of General Statutes § 46b-59,3 Connecticut's nonparent visitation statute. In Roth v. Weston, supra, 259 Conn. at 209, 789 A.2d 431, the court framed the issue before it as "whether, in light of the United States Supreme Court decision in Troxel, § 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." In Castagno, the court "incorporated a threshold jurisdictional requirement into § 46b-59 that would permit the trial court to entertain a petition for visitation only when the family life of the minor child had been disrupted either by state intervention analogous to the situations included within [General Statutes] §§ 46b-56 and 46b-57 or `in a manner similar to that addressed by §§ 46b-56 and 46b-57, but in which the courts have not yet become involved.'" Roth v. Weston, supra, at 215-16, 789 A.2d 431, quoting Castagno v. Wholean, supra, at 350, 684 A.2d 1181.

In Roth, our Supreme Court overruled Castagno, concluding that "the threshold requirement articulated in Castagno fails to protect adequately the fundamental right to rear one's child and the right to family privacy." Roth v. Weston, supra, 259 Conn. at 217, 789 A.2d 431. The court stated: "[I]t is now apparent that [Castagno's interpretation of § 46b-59] does not adequately acknowledge the status of parents' interest in the care, custody and control of their children, as `perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.' Troxel v. Granville, supra, 530 U.S. at 65 . Building on a long line of cases acknowledging the fundamental right of parents to raise their children as they see fit, Troxel teaches that courts must presume that `fit parents act in the best interests of their children,' and that `so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State 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.' Id., at 68-69. Moreover, Troxel confirms that among those interests lying at the core of a parent's right to care for his or her own children is the right to control their associations. Id. The essence of parenthood is the companionship of the child and the right to make decisions regarding his or her care, control, education, health, religion and association. Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (noting that liberty interest includes rights of parents to establish home, bring up children and control education). Furthermore, Troxel confirms that the family integrity is the core element upon which modern civilization is founded and that the safeguarding of familial bonds is an innate concomitant of the protective status accorded the family as a societal institution." Roth v. Weston, supra, at 216-17, 789 A.2d 431.

The Roth court held that the standard of review applicable to the "legislative intrusion" into a parent's fundamental right to rear one's child embodied in § 46b-59 is the strict scrutiny test. Id., at 217-18, 789 A.2d 431. It noted that "[t]he constitutionally protected interest of parents to raise their children without interference undeniably warrants deference and, absent a powerful countervailing interest, protection of the greatest possible magnitude." Id., at 228, 789 A.2d 431. The court then reformulated the threshold requirement for nonparent visitation applications: "[W]e 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...

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