Michaud v. Wawruck

• Decision Date: 20 December 1988
• Docket Number: No. 13482,13482
• Citation: Michaud v. Wawruck, 551 A.2d 738, 209 Conn. 407 (Conn. 1988)
• Court: Connecticut Supreme Court
• Parties: , 78 A.L.R.4th 209, 57 USLW 2435 Jacqueline MICHAUD v. James WAWRUCK et al.

Page 738

551 A.2d 738

209 Conn. 407, 78 A.L.R.4th 209, 57

USLW 2435

Jacqueline MICHAUD v.James WAWRUCK et al.

No. 13482.

Supreme Court of Connecticut.

Argued Nov. 3, 1988.

Decided Dec. 20, 1988.

David R. Kritzman, Farmington, with whom, on the brief, was Michael M. Darby, Manchester, for the appellant(plaintiff).

J. Patrick Dwyer, Newark, N.J., with whom, on the brief, was Timothy J. Fitzgerald, Windsor, for the appellees(defendants).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and GLASS, JJ.

PETERS, Chief Justice.

The sole issue in this case is whether a written visitation agreement between a genetic mother and adoptive parents violates the public policy of this state.The plaintiff, Jacqueline Michaud, filed a complaint seeking specific enforcement of an "Open Adoption and Visitation Agreement" between herself and the defendants, James Wawruck and Cynthia Wawruck.The defendants filed a motion to strike the complaint, which was granted by the trial court, Barall, J., and was the basis for the subsequent rendering of a judgment in favor of the defendants by the trial court, Kaplan, J.The plaintiff's appeal to the Appellate Court has been transferred to this court pursuant to Practice Book§ 4023.We find error and remand the case for further proceedings.

Since this appeal is from a judgment following the granting of a motion to strike, we must take the facts to be those alleged in the plaintiff's complaint and construe the complaint in the manner most favorable to sustaining its legal sufficiency.Blancato v. Feldspar Corporation, 203 Conn. 34, 36, 522 A.2d 1235(1987);Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336(1986).Accordingly, we assume the following factual circumstances concerning the "Open Adoption and Visitation Agreement" negotiated by the parties.The Ellington Probate Court, on August 31, 1981, terminated the plaintiff's parental rights with respect to her child born on February 5, 1979.The same Probate Court terminated the father's parental rights on January 6, 1982.At some time thereafter, in 1982, the plaintiff filed a Superior Court action against the commissioner of children and youth services to set aside the Probate Court's decree terminating her parental rights, on the ground that her consent to that proceeding had been fraudulently procured by the child's father.The child's foster parents, who were then seeking to adopt the child, were permitted to intervene as defendants in the Superior Court action.The plaintiff agreed to withdraw her lawsuit, and to allow the adoption to go forward, in exchange for the defendants' agreement to permit regular visitation between the plaintiff and the child during the child's minor years.¹

The agreement between the parties was placed on record in the Superior Court on September 16, 1983.Acquiescence in the agreement was noted, in open court, by counsel for the plaintiff, for the defendants, for the commissioner, and for the minor child.The agreement was not, however, made part of the subsequent decree of the Probate Court permitting the defendants to adopt the child, although the parties to that proceeding, having all appeared in the Superior Court action, were fully aware of its terms.After the adoption had been finalized, the defendants terminated all visitation between the plaintiff and the child.

The trial court, after reviewing these facts, granted the defendants' motion to strike the plaintiff's complaint because, in its view, enforcement of the "Open Adoption and Visitation Agreement" would violate Connecticut's adoption statutes.According to the trial court, adoption, as a creature of statute, must comply strictly with statutory requirements, and the existing statutes governing adoption preclude private "side agreements" that would serve to perpetuate a relationship, after adoption, between a genetic parent and an adopted child.The court noted that termination of parental rights, under General Statutes § 45-61b(g), ² operates as a "complete severance by court order of the legal relationship ... between the child and his parent...."Furthermore, under General Statutes § 45-64a, ³ adoption creates new legal relationships in which the adopting parents are completely substituted for the genetic parents of an adopted person.Finally, the trial court observed that General Statutes § 45-63⁴ requires agreements about adoption to be in writing and filed in the Probate Court.Relying on these statutory provisions, and a number of out-of-state cases, the court concluded that the contract between the parties could not confer upon the plaintiff a specifically enforceable right to visitation after completion of the adoption process.

Although the plaintiff's appeal purports to raise three issues about the enforceability of her "Open Adoption and Visitation Agreement," there is really only one question that we must resolve: did the trial court err in concluding that this agreement violated the public policy reflected in our adoption statutes?⁵We disagree with the trial court's ruling.

The validity of an "open adoption" agreement is a matter of first impression for this court.Before we address the merits of this question, we should note that the title "open adoption," which has apparently become the standard characterization of such agreements, ⁶ conveys a misleading impression of what such agreements intend to accomplish.The plaintiff does not seek to "open," to set aside or to diminish in any way the adoptive process that has substituted the defendants as the legal parents of the child.The plaintiff's rights are not premised on an ongoing genetic relationship that somehow survives a termination of parental rights and an adoption.Instead, the plaintiff is asking us to decide whether, as an adult who has had an ongoing personal relationship with the child, she may contract with the adopting parents, prior to adoption, for the continued right to visit with the child, so long as that visitation continues to be in the best interest of the child.⁷

Our statutes recognize that visitation encompasses considerations that differ from those that govern custody, guardianship or parental status.The plaintiff reminds us that, in the adoption statutes themselves, while an application for adoption must disclose pending proceedings"affecting the custody of the child to be adopted ... [f]or the purposes of [such disclosure], visitation rights granted by any court shall not be considered as affecting the custody of the child."General Statutes § 45-63(a)(2).The defendants maintain that this statutory distinction merely reflects the fact that Probate Court adoption proceedings necessarily must take outstanding custody orders into account, while visitation rights are not so implicated.This explanation for the distinction contained in § 45-63 may well be accurate but it does not eradicate the existence of the distinction and thus supports the plaintiff's position that the adoption statutes do not expressly make a visitation agreement void as against public policy.

Even more significantly, our visitation statute, General Statutes § 46b-59, permits the Superior Court, upon a proper application, to "grant the right of visitation with respect to any minor child ... to any person....In making, modifying or terminating such an order, the court shall be guided by the best interest of the child....Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person ... to whom such visitation rights are granted.The grant of visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights."In Temple v. Meyer, 208 Conn. 404, 410, 544 A.2d 629(1988), we recently noted that this statute"leaves great latitude for the exercise of judicial discretion because it does not focus on the legal relationship of the parties involved....The only criterion under § 46b-59 is the best interest of the child."See alsoManter v. Manter, 185 Conn. 502, 508, 441 A.2d 146(1981).All this plaintiff seeks is a court order consistent with the statutory constraints imposed on visitation by § 46b-59.

In light of these statutes, we are unpersuaded that the agreement between the parties in this case violates the public policy of Connecticut.It would be elevating form over substance to allow the plaintiff to obtain visitation rights by filing an appropriate "application" in the Superior Court, but to deny her the opportunity to seek such rights under a contractual umbrella.

Case law in other jurisdictions does not persuade us that we should strike down the visitation agreement in this case.To a significant extent, the cases turn on legislative determinations that vary from state to state.We note nonetheless that People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 429 N.E.2d 1049, 445 N.Y.S.2d 420(1981), concluded, as do we, that the statutory creation of an adoptive family does not automatically require complete severance of the child from all further contact with former relatives.Similarly, Weinschel v. Strople, 56 Md.App. 252, 261, 466 A.2d 1301(1983), concluded, as do we, that as long as the best interest of the child is the determinative criterion, public policy does not forbid an agreement about visitation rights between a genetic parent and adoptive parents.In re Custody of Atherton, 107 Ill.App.3d 1006, 63 Ill.Dec. 582, 438 N.E.2d 513(1982), on which the trial court relied, is distinguishable because that decision focused on the impropriety of parental bargaining about post-adoption custody when, according to the court, the purpose of the parties' contract was to bypass judicial determinations of custody.That is not this case.

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