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Fuller v. Baldino

Court of Appeals of Connecticut

September 19, 2017

MARK FULLER
v.
ANN BALDINO

          Argued May 24, 2017

          Marissa Bigelli Hernandez, for the appellant (plaintiff).

          Bonnie Amendola, for the appellee (defendant).

          DiPentima, C. J., and Alvord and Lavery, Js.

         Syllabus

         The plaintiff filed a third party petition for visitation with the defendant's minor child after his relationship with the defendant ended. The defendant moved to dismiss the petition for lack of subject matter jurisdiction on the ground that the plaintiff failed to allege facts sufficient to satisfy the jurisdictional prerequisites set forth in Roth v. Weston (259 Conn. 202), specifically, that the plaintiff have a parent-like relationship with the child and that the denial of visitation would result in real and substantial harm to the child. The trial court granted the motion to dismiss and rendered judgment thereon dismissing the petition, from which the plaintiff appealed to this court, claiming, inter alia, that the trial court improperly dismissed his petition without an evidentiary hearing on the ground that he failed to allege facts sufficient to satisfy the jurisdictional prerequisites set forth in Roth. Held that the trial court properly dismissed the plaintiff's visitation petition for lack of subject matter jurisdiction without an evidentiary hearing, that court having properly determined that the petition failed to sufficiently allege that the denial of visitation would subject the child to real and significant harm; although the plaintiff alleged that he had a strong bond with the child, that the child suffered and was very emotional when unable to see him, and that he played a significant role in caring for the child's severe health conditions, those allegations did not rise to the level of neglect, abuse, or abandonment, as Roth and its progeny require, and the petition did not specifically state the type of harm the child would suffer if the plaintiff was denied visitation.

         Procedural History

         Petition for visitation of the defendant's minor child, brought to the Superior Court in the judicial district of Ansonia-Milford, where the court, S. Richards, J., granted the defendant's motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          OPINION

          LAVERY, J.

         The plaintiff, Mark Fuller, appeals from the judgment of the trial court dismissing his third party petition for visitation rights pursuant to General Statutes § 46b-59[1] and Practice Book § 25-4 as to the minor child of the defendant, Ann Baldino. The plaintiff claims that the court improperly dismissed his petition without an evidentiary hearing on the ground that he failed to allege facts establishing the requirements for jurisdiction set forth in Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002).[2] We affirm the judgment of the trial court.

         The record reveals the following relevant facts and procedural history. On July 31, 2015, the plaintiff filed a third party petition for visitation seeking visitation rights with regard to the defendant's child. The petition alleged the following facts. Since 2006, the plaintiff and the child ‘‘have had a parent-like relationship.'' The plaintiff ended his romantic relationship with the defendant around December, 2013, but ‘‘continued to parent the minor child until December, 2014.'' The plaintiff ‘‘has been the only father the minor child has known since the child was approximately two years old. Until December, 2014 . . . the [plaintiff] acted as a hands-on parent and held himself out as [the] father. The minor child recognizes the [plaintiff] as ‘dad.' '' Throughout the plaintiff's relationship with the child, the plaintiff provided financial support for the child; has ‘‘cared for the daily needs of the child''; and ‘‘has been involved with the major decisions concerning the child's health, education, and welfare.'' Finally, the petition alleged that the ‘‘[d]enial of visitation will cause real and significant harm to the child due to the relationship and bond formed between the [plaintiff] and minor child over the past nine years.''

         The defendant moved to dismiss the petition for lack of subject matter jurisdiction, arguing that the petition did not allege sufficient facts to establish the prerequisites for jurisdiction set forth in Roth v. Weston, supra, 259 Conn. 202, namely, that the plaintiff had a parent like relationship with the child and that the denial of visitation would inflict real and substantial harm on the child. The defendant submitted an affidavit in support of her motion to dismiss in which she, inter alia, admitted that she granted the plaintiff visitation for a period of time after their 2013 separation but denied that the plaintiff had provided financial or other support to the child during their relationship.

         Subsequently, the plaintiff filed an objection, arguing that his petition had set forth the necessary factual predicate for subject matter jurisdiction. In support of his objection, the plaintiff filed a memorandum of law and an affidavit in which he expanded upon some of the factual allegations made in his petition. As relevant in this appeal, the petitioner averred in his affidavit (1) that he first met the child in 2005 and lived with the child and the defendant from 2006 until their separation in 2013; (2) that during that time period, and extending until December, 2014, he was the child's ‘‘primary parent'' in that he took the child to his medical appointments and was ‘‘involved in all major decision making, '' including decisions regarding the child's health; (3) that he would care for the child's ‘‘severe health conditions'' and presently does not know whether the child continues to receive proper care; (4) that, around the end of their relationship, the defendant ‘‘would take off for a day or two at a time without divulging where she was, '' leaving the child in his care; (5) that he has built a ‘‘very strong bond'' with the child and that the child ‘‘suffers'' and ‘‘is very emotional'' when unable to see him; and (6) that the child has indicated that he misses the plaintiff and still considers the plaintiff to be his father.

         The court heard argument on November 4, 2015, and ultimately granted the defendant's motion to dismiss on the record. The court concluded that, although the petition alleged sufficient facts to establish that the plaintiff had a parent-like relationship with the child, neither the petition nor the plaintiff's affidavit sufficiently alleged that the ...


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