Roth v. Weston

Decision Date29 January 2002
Docket Number(SC 16565)
CourtConnecticut Supreme Court

Sullivan, C. J., and Borden, Katz, Palmer and Zarella, Js. Robert A. Fuller, with whom were Karen A. Stansbury and, on the brief, Richard J. Fricke, for the appellant (defendant).

G. Randall Avery, for the appellees (plaintiffs).



The defendant, Stan Weston, appeals from the judgment of the trial court granting an application for visitation with the defendant's two minor children to the plaintiffs, Mindy Roth and Donna Campbell, respectively the children's maternal grandmother and maternal aunt, pursuant to General Statutes § 46b-59.1 The defendant raised several issues in his appeal to the Appellate Court.2 We transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c) to address an important issue of first impression, namely, the constitutionality of § 46b-59 under the due process clause of the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.3 The defendant claims that, in light of the United States Supreme Court's recent decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), § 46b-59 is either facially unconstitutional or unconstitutional as applied to the facts of the present case. We conclude that the statute is unconstitutional as applied to the extent that the trial court, pursuant to the statute, permitted third party visitation contrary to the desires of a fit parent and in the absence of any allegation and proof by clear and convincing evidence that the children would suffer actual, significant harm if deprived of the visitation. Accordingly, we reverse the judgment of the trial court ordering visitation.

The record discloses the following undisputed facts. The plaintiffs filed a complaint in the trial court seeking visitation with the defendant's children in March, 2000, three months after the defendant's wife had committed suicide.4 The defendant had refused to permit any contact between the plaintiffs and his children during the months following his wife's death.5 The plaintiffs' complaint alleged that the family unit had been disrupted by the death of the children's mother and therefore was no longer intact. The plaintiffs further alleged that visitation was in the best interest of the children. They did not, however contend that the defendant was in any way an unfit parent. At the time the plaintiffs filed the complaint, they also filed a motion for visitation pendente lite and a motion for a referral to the family relations division of the Superior Court. The trial court granted the plaintiffs' motions, and appointed a guardian ad litem for the children. Pursuant to the trial court's order, the guardian ad litem scheduled and supervised visits between the defendant's children and the plaintiffs at her office. The defendant's children were ages two and four at the time the action was commenced; they were ages three and five at the time of the trial.

At trial, the defendant argued that any visitation with Roth should be supervised and that Campbell should be denied visitation altogether. The defendant objected to unsupervised visits with Roth because he contended that, based on her physical condition and her inability to drive or read, she would be unable to act in emergency situations. In addition, the defendant objected to visitation with either plaintiff because he believed that their morals, values and ethics were inconsistent with his own and those that he wished to instill in his children. Specifically, the defendant noted that, many years ago, Roth voluntarily had placed three of her own young children, including the defendant's wife, in foster care with the department of children and families. Roth's children had remained in foster care until they were seventeen years old. Campbell had been involved in pornographic films and had worked as a nude dancer at various adult clubs between 1990 and 1995. The defendant was concerned that it would be detrimental to his children should they learn about Campbell's past activities and that Campbell continued to promote such activities. The defendant testified that he was also concerned that, should Roth be granted unsupervised visitation, she would not prevent Campbell from having contact with the children.

The trial court made the following findings of fact. Both plaintiffs had established loving and responsible relationships with the defendant's children throughout their lives. During the two years preceding the death of the defendant's wife, Roth had visited her daughter and the children two to three times per week. Roth assisted her daughter in caring for the children by making meals, and washing and ironing the children's clothes. She babysat for the children, and occasionally had them sleep over at her house while their mother or father were away. Campbell also had been close to her sister and the children during the two years preceding her sister's death. Campbell tried to contact her sister each day, knowing that her sister was suffering from mental illness, and also assisted in caring for the children. Campbell purchased furniture and helped prepare a nursery for the children.

The trial court next addressed each of the defendant's objections to visitation. With respect to the defendant's concerns about Roth's unsupervised visitation, the court found Roth to be "a capable and hard-working person without any disabilities." In support of this finding, the trial court noted that Roth had been working at a full-time position caring for a person suffering from Alzheimer's disease. With respect to the defendant's objection to any visitation with Campbell, the court found that Campbell had "reformed from her previous lifestyle ... [and did] not pose any danger to [the] children because she had changed her ways...." The trial court noted that Campbell had obtained a real estate broker's license in 1996 and had worked successfully in that field for the subsequent three years. Moreover, she had received a bachelor's degree in economics from Fairfield University in 1999. The court noted that Campbell should be commended, rather than condemned, for the steps she had taken to change her life.

The trial court also cited the testimony of Campbell's sister, Kelly Campbell Allen, and the guardian ad litem's report to the court in support of unsupervised visitation. Allen had lived with the defendant and his wife for three years, and had maintained a good relationship with the defendant. Allen testified that it was her belief that the children would not be at risk should unsupervised visitation be granted. The guardian ad litem had submitted a report to the trial court recommending unsupervised visitation with both plaintiffs based upon her observations of them during visitations with the defendant's children at her office. The guardian ad litem concluded that it was imperative for the children to grow up having a relationship with their mother's family. She further noted that the defendant had demonstrated a hostile attitude toward her regarding the issue of visitation that she found contrary to the children's best interest.

On the basis of these facts and this testimony, the trial court concluded that the plaintiffs had met their burden of proof pursuant to § 46b-59 by clear and convincing evidence that it was in the children's best interest to have unsupervised visitation with both of the plaintiffs. Consequently, the court rendered judgment ordering visitation as follows: (1) unsupervised visitation with Roth for the first weekend of each month; (2) unsupervised visitation with Campbell for the third weekend of each month; (3) one week of unsupervised visitation with Roth during the month of July; and (4) one week of unsupervised visitation with Campbell during the month of August. Moreover, the trial court ordered the defendant not to relocate the children from their current residence without a court order. Finally, the trial court ordered all the parties to participate at their own cost in separate counseling sessions with a court-appointed psychologist until such time as the psychologist determined that counseling was no longer necessary. This appeal followed.


The dispositive issue on appeal is 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. Specifically, the defendant claims that, despite the judicial gloss we placed upon § 46b-59 in Castagno, the statute nevertheless violates the rights of parents to rear their children under the due process clause of the fourteenth amendment to the federal constitution and article first, § 8, of the Connecticut constitution.6 He further claims that even if the statute survives his facial attack, it is unconstitutional as applied by the trial court to the extent that it permits third party visitation contrary to the desires of a fit parent. Tied to this challenge is the threshold issue of jurisdiction. Accordingly, we resolve the claims together.


We begin with a discussion of the two cases that inform the disposition of this appeal. In Castagno v. Wholean, supra, 239 Conn. 353, we affirmed the trial court's judgment dismissing an action by maternal grandparents seeking visitation rights with the defendants' minor children. We concluded that the trial court did not have subject matter jurisdiction to entertain the petition because the grandchildren and their parents were not involved in any case or controversy then before the court and because there was no claim that the family unit was no longer intact. Id., 352-53. Although § 46b-59 did not include specific language imposing...

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