Hunter v. Shrestha

195 Conn.App. 393

225 A.3d 285

Craig B. HUNTER et al.

v.Satyam S. SHRESTHA

AC 41751

Appellate Court of Connecticut.

Argued October 8, 2019

officially released January 21, 2020

Barbara J. Ruhe, for the appellants (plaintiffs).

Tanya T. Dorman, for the appellee (defendant).

Alvord, Moll and Beach, Js.

ALVORD, J.

The plaintiffs, Craig B. Hunter and Sarah Megan Berthold, appeal from the judgment of the trial court dismissing their third-party petition for visitation pursuant to General Statutes § 46b-59¹ and Practice Book § 25-4² as to the minor child of the defendant, Satyam S. Shrestha. Because we conclude that the plaintiffs' petition 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 following facts and procedural history are necessary to our resolution of the plaintiffs' appeal. On January 26, 2017, the then self-represented plaintiffs³ filed a third-party petition seeking visitation with the defendant's child.⁴ The plaintiffs checked the box on the petition stating that they "have a relationship with the child(ren) that is parent-like."⁵ The plaintiffs alleged that they had been the child's "primary caregivers for three years prior to July 15, 2016," and that for the first one and one-half years of that time, the child lived with the plaintiffs seven days per week, and for the remainder of that time, the child lived with the plaintiffs five days per week. The plaintiffs checked the box stating that "[d]enial of visitation will cause real and significant harm to the child(ren)." The plaintiffs alleged that "[i]t would cut [the child] off from all ties with her maternal side of the family. [The child's] mother abandoned her when she was [one year old] and we have been consistent and parent-like caregivers in her life ever since. Denying visitation will have the effect of [the child] feeling that we have abandoned her and compound her early childhood trauma [and] harm her." The plaintiffs also added, "see attached [s]upplements."

In the attached supplement, the plaintiffs alleged that prior to the child's birth, they "provided extensive financial and emotional support" to the child's parents. The plaintiffs alleged that they were present from the time of the child's birth and infancy and "provided her with parent-like care." The plaintiffs alleged that they "have had a continuous parent-like relationship with [the child] on both coasts of the United States throughout her life" and that "[s]he began to live with [them] several days a week before she first attended school." The plaintiffs alleged that they had "continuously supported and assisted" the defendant in the child's education and spiritual growth. Lastly, the plaintiffs alleged that the defendant recently had deprived the child and the plaintiffs of the relationship and companionship they had previously enjoyed, and that they had been deprived of contact with the child, which had seriously disrupted the parent-like relationship with the child that the defendant had previously encouraged. The plaintiffs sought, inter alia, weekly visitation with the child, including overnight visitation every other weekend and weekday visitation twice a week on alternate weeks, and permission to communicate with the child on a daily basis.

Before the trial court, the defendant challenged the court's subject matter jurisdiction over the petition. Ultimately, the trial court found that the plaintiffs had failed to set forth the specific, good faith allegations required by Roth v. Weston , supra, 259 Conn. at 234–35, 789 A.2d 431, namely, 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." Accordingly, the trial court dismissed the petition for lack of subject matter jurisdiction. This appeal followed.

The dispositive issue on appeal is whether the trial court lacked subject matter jurisdiction over the plaintiffs' petition.⁶ We conclude that the plaintiffs failed to plead the requisite level of harm under the second element of Roth , and, therefore, the court correctly dismissed the petition for lack of subject matter jurisdiction.⁷

We first set forth relevant principles of law and our standard of review. It is well established that "[a] court lacks discretion to consider the merits of a case [or claim] over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time ... [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Warner v. Bicknell , 126 Conn. App. 588, 596, 12 A.3d 1042 (2011) ; see id., at 594, 12 A.3d 1042 ("[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented.... The court must fully resolve it before proceeding further with the case." [Internal quotation marks omitted.] ). "Because a challenge to the jurisdiction of the court presents a question of law, our review of the court's legal conclusion is plenary." (Internal quotation marks omitted.) Fuller v. Baldino , 176 Conn. App. 451, 457, 168 A.3d 665 (2017).

In Roth v. Weston , supra, 259 Conn. at 228, 789 A.2d 431, our Supreme Court recognized that the "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." To safeguard parents' rights against unwarranted intrusions into their authority, the court set forth "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." Id., at 234, 789 A.2d 431.

"First, 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. The petition must also contain specific, good faith allegations that denial of the visitation will cause real and significant harm to the child. As we have stated, that 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.' The degree of specificity of the allegations must be sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation. Only if these specific, good faith allegations are made will a court have jurisdiction over the petition." Id., at 234–35, 789 A.2d 431.

"Second, once these high jurisdictional hurdles have been overcome, the petitioner must prove these allegations by clear and convincing evidence. Only if that enhanced burden of persuasion has been met may the court enter an order of visitation." Id., at 235, 789 A.2d 431.

When faced with a motion to dismiss a petition for visitation on the basis that it fails to allege the jurisdictional elements set forth in Roth , "the trial court is required ... to scrutinize the [petition] and to determine whether it contains specific, good faith allegations of both relationship and harm.... If the [petition] does not contain such allegations, the court lacks subject matter jurisdiction and the [petition] must be dismissed." (Citations omitted; footnote omitted.) Fennelly v. Norton , 103 Conn. App. 125, 142, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).

As stated previously, the second element of Roth requires that the petition "contain specific, good faith allegations 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 §§ 46b-120 and 46b-129, namely, that the child is ‘neglected, uncared-for or dependent.’ "⁸ Roth v. Weston , supra, 259 Conn. at 235, 789 A.2d 431 ; see also Firstenberg v. Madigan , 188 Conn. App. 724, 735, 205 A.3d 716 (2019) ("[t]he statute is clear and unambiguous that a petition for visitation must make specific, good faith allegations that the minor child will suffer real and significant harm akin to neglect if visitation were denied"). In Roth , our Supreme Court stated: "[I]t is unquestionable that in the face of allegations that parents are unfit, the state may intrude upon a family's integrity.... Therefore, it is clear that a requirement of an allegation such as abuse, neglect or abandonment would provide proper safeguards to prevent families from defending against unwarranted intrusions and would be tailored narrowly to protect the interest at stake." (Citations omitted.) Roth v. Weston , supra, at 224, 789 A.2d 431. The court described as the "more difficult issue ... whether the child's own complementary interest in preserving relationships that serve his or her welfare and protection can also constitute a compelling interest that warrants intruding upon the fundamental rights of parents to rear their children." Id., at 225, 789 A.2d 431. The court stated: "We can envision circumstances in which a nonparent and a child have developed such substantial emotional ties that the denial of visitation could cause serious and immediate harm to that child. For instance, when a person has acted in a parental-type capacity for an extended period of time, becoming an integral part of the child's regular routine, that child could suffer serious harm...