Romeo v. Bazow
|21 January 2020
|195 Conn.App. 378,225 A.3d 710
|Connecticut Court of Appeals
|Richard ROMEO et al. v. Fernne BAZOW
John F. Morris, Hartford, for the appellants (plaintiffs).
Steven R. Dembo, with who were Caitlin E. Kozloski, Hartford, and, on the brief, P. Jo Anne Burgh, Glastonbury, for the appellee (defendant).
Alvord, Prescott and Sullivan, Js.
The plaintiffs, Richard Romeo and Nancy Romeo, appeal from the judgment of the trial court dismissing their third-party petition for visitation brought pursuant to General Statutes § 46b-59 and Practice Book § 25-4 as to the minor children of the defendant, Fernne Bazow. On appeal, the plaintiffs claim that the court improperly dismissed their petition on the basis that it failed to satisfy the jurisdictional pleading requirements set forth in Roth v. Weston , 259 Conn. 202, 789 A.2d 431 (2002). We affirm the judgment of the trial court.
The record reveals the following relevant facts and procedural history. On January 8, 2018, the plaintiffs filed a third-party petition for visitation seeking visitation with the defendant's two minor children.1 The plaintiffs checked the box on the petition stating that they "have a relationship with the child(ren) that is parent-like." In the space below, the plaintiffs wrote: "See attached Affidavit." The plaintiffs also checked the box stating that "[d]enial of visitation will cause real and significant harm to the child(ren)" and again referenced the attached affidavit.2
In the attached affidavit, the plaintiffs averred that they are the maternal grandparents of the children and that they "have had a long-standing involvement with [their] grandchildren that has been so active, involved, and regular as to be the same as a parent-child relationship." They averred that they had lived with the children for the children's entire lives and had taught them hygiene, safety, respect, and morality, among other basic necessities of life. They averred that Richard Romeo had been the only consistent male role model the children have had. They averred that the defendant was upset with them because they had recently advocated for the defendant's daughter to have a relationship with her estranged father and that the defendant had retaliated against the plaintiffs by moving out of their home and restricting their access to the children.
The plaintiffs' affidavit contained twenty-three paragraphs detailing their involvement with the children, including providing childcare, both during their infancy "on a daily and often over-night basis," and during their preteen years to enable the defendant to maintain employment. They averred that they provided clothing, shoes and shelter for the children, taught them life skills, took them on vacations, did homework with them, and facilitated their involvement in sports activities. As to Nancy Romeo, they averred that she "became the custodian" for the children when she retired in 2013, at which time she became responsible for "getting them up in the morning, getting them breakfast, making sure homework was done, and taking them to and picking them up from school, after school activities, supper and putting them to bed." The plaintiffs averred that the defendant's daughter has asthma
, and that "many times [they] were the ones doing asthma treatment with her, bringing her to the doctor, and on occasion to the hospital."
The plaintiffs averred that they strongly feel that "it is in [the] children's best interests to maintain a consistent and ongoing relationship" with them.
The plaintiffs further averred:
The plaintiffs sought visitation with the children "one weekend per month from Friday after school until Sunday night at dinnertime, one mid-week overnight every other week, summer vacation time, and regular telephone or FaceTime access."
On January 31, 2018, the defendant filed a motion to dismiss the petition on the basis that the plaintiffs lacked standing and, therefore, that the court lacked subject matter jurisdiction. In her memorandum of law in support of her motion to dismiss, the defendant argued that the plaintiffs had failed to plead the factual allegations necessary to provide the court with jurisdiction. Specifically, she argued that the petition failed to satisfy the second element of the two part test for standing established by our Supreme Court in Roth v. Weston , supra, 259 Conn. at 235, 789 A.2d 431, in that the petition lacked specific, good faith allegations that denial of the visitation will cause real and significant harm to the children.
She argued that the only allegation of harm contained in the petition did not specifically identify the type of harm and spoke "to some hypothetical child or children and not even the defendant's children ...." She further argued that there were no allegations that "would be of such magnitude such as to allow the state to assume custody under [ General Statutes §§] 46b-120 and 46b-129."
On February 16, 2018, the plaintiffs filed an objection to the motion to dismiss, in which they argued that the defendant's claims were not the proper subject of a motion to dismiss. They maintained that "[t]he defendant's claim that the allegations in the affidavit do not rise to the level of ‘parent-like relationship’ and/or that the denial will not cause ‘real and significant harm’ are appropriately subjects of a hearing on the merits of the petition, where the claims of both parties can be weighted, considered and decided." The defendant filed a reply to the plaintiffs' objection on March 8, 2018.
On June 6, 2018, the plaintiffs filed an expert witness disclosure, in which they indicated that Sidney Horowitz, a clinical and forensic psychologist, was expected to testify as to "the real and significant harm caused to the minor children by the defendant's sudden exclusion of the plaintiffs from the children's lives after years of substantial and regular involvement."3
The disclosure was refiled on September 7, 2018. On September 25, 2018, the defendant filed a motion in limine seeking to preclude the plaintiffs from presenting expert testimony during the hearing on the defendant's motion to dismiss.
The defendant argued therein that the proper inquiry for the court was whether the petition, as pleaded, was sufficient to afford the court jurisdiction and that the plaintiffs should not be permitted to supplement their allegations through expert testimony.
The parties appeared before the court, Margaret M. Murphy, J. , on September 26, 2018. The defendant's counsel represented that the parties had met that morning with Judge Olear, who had denied the plaintiffs' request for a continuance based on the filing of the motion in limine. According to the defendant's counsel, Judge Olear had stated that the matter was going forward because "there was no ability to have third parties."4 The defendant's counsel accordingly restricted his argument before Judge Murphy to the motion to dismiss, and the plaintiffs' counsel did not thereafter reference the expert disclosure. At the conclusion of argument, the court stated that it needed to decide the subject matter jurisdiction issue before proceeding and that it would issue a decision shortly.
On October 5, 2018, the court issued a memorandum of decision in which it granted the defendant's motion to dismiss the petition on the basis that the plaintiffs lacked standing because their petition failed to include the jurisdictional elements required by Roth . As to the first element, the court found that, although "the petition asserts daily interactions and contact, cohabitation alone does not establish the requisite parent-like relationship." With respect to the allegations of activities that the plaintiffs facilitated with the children, the court found that such interactions did not suffice to meet the jurisdictional threshold.5 As to the second element, the court found that the petition contained no specific allegations of real and significant harm to the children from the lack of visitation. Specifically, the court found that the plaintiffs' allegations evidenced a disagreement with certain parenting decisions made by the defendant but that the plaintiffs did not allege that the defendant is unfit or that the children are neglected. The court stated: Accordingly, the court granted the defendant's motion to dismiss the petition. This appeal followed.
On appeal, the plaintiffs claim that the court erred in dismissing the petition and in failing to consider the plaintiffs' expert witness disclosure. We disagree.
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