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*********************************************** 
MARK FULLER v. ANN BALDINO

(AC 38660)

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.

Argued May 24—officially released September 19, 2017

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.

Marissa Bigelli Hernandez, for the appellant

(plaintiff).

Bonnie Amendola, for the appellee (defendant).
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-591 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 handson 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 parentlike 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 denial of visitation would cause

the child to experience real and substantial harm. This

appeal followed.

The plaintiff claims that the court improperly concluded that his petition and affidavit failed to allege

facts establishing the jurisdictional requirements of

Roth. Specifically, the plaintiff argues that the court, in

determining that he failed to sufficiently allege that

denial of visitation would cause real and substantial

harm to the child, failed to consider that the emotional

harm suffered by the child as a result of his separation

from the plaintiff is sufficient under Roth.

3 According

to the plaintiff, he pleaded the substantial harm requirement by virtue of his allegations of his close parental

relationship with the child. The defendant concedes

that the plaintiff sufficiently alleged a parent-like relationship with the child but asserts that the court properly concluded that the allegations do not amount to

the sort of real and substantial harm contemplated by

Roth. We agree with the defendant.4

We begin by setting forth the relevant standard of

review and the applicable legal principles. ‘‘The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a

motion to dismiss, a court must take the facts to be

those alleged in the complaint, including those facts

necessarily implied from the allegations, construing

them in a manner most favorable to the pleader. . . .

A motion to dismiss tests, inter alia, whether, on the

face of the record, the court is without jurisdiction.

. . . Because a challenge to the jurisdiction of the court

presents a question of law, our review of the court’s
legal conclusion is plenary. . . . Subject matter jurisdiction involves the authority of the court to adjudicate

the type of controversy presented by the action before

it. . . . [A] court lacks discretion to consider the merits

of a case over which it is without jurisdiction . . . .’’

(Citation omitted; internal quotation marks omitted.)

Fennelly v. Norton, 103 Conn. App. 125, 133–34, 931

A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936

(2007).

In Roth, 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.’’ Roth v.

Weston, supra, 259 Conn. 228. To safeguard parents’

rights against unwarranted intrusions into their authority, the court in Roth set forth requirements ‘‘that must

be satisfied in order for a court . . . to have jurisdiction over a petition for visitation contrary to the wishes

of a fit parent . . . .’’ Id., 234. Specifically, ‘‘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

the 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.,

234–35.

In the present case, the plaintiff argues that he satisfied the real and significant harm requirement because

he pleaded facts establishing that he and the child had

‘‘such a close father-child bond for an extended period

of time . . . .’’ The court in Roth explained that,

although ‘‘an allegation such as abuse, neglect or abandonment’’ clearly would satisfy the real and significant

harm requirement; Roth v. Weston, supra, 259 Conn.

224; the ‘‘more difficult issue is 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., 225. 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 should contact with

that person be denied or so limited as to seriously

disrupt that relationship. Thus, proof of a close and

substantial relationship and proof of real and significant

harm should visitation be denied are, in effect, two

sides of the same coin. Without having established substantial, emotional ties to the child, a petitioning party

could never prove that serious harm would result to

the child should visitation be denied. This is as opposed

to the situation in which visitation with a third party

would be in the best interests of the child or would be

very beneficial. The level of harm that would result

from the denial of visitation in such a situation is not

of the magnitude that constitutionally could justify overruling a fit parent’s visitation decision. Indeed, the only

level of emotional harm that could justify court intervention is one that is akin to the level of harm that

would allow the state to assume custody under . . .

§§ 46b-120 and 46b-129—namely, that the child is

‘neglected, uncared-for or dependent’ as those terms

have been defined.’’ Id., 225–26; see also Crockett v.

Pastore, 259 Conn. 240, 249–50, 789 A.2d 453 (2002)

(petitioner must allege that denial of visitation would

cause real and significant harm and not merely that

visitation will be in best interests of child).

With these legal principles in mind, we turn to the

present case. Because the first prong of Roth is not at

issue in this case, we address only the requirement

that the plaintiff allege real and substantial harm. We

conclude that the plaintiff failed to carry the burden

Roth sets where the type of harm alleged is emotional

and stems from the denial of visitation itself. Although

the plaintiff alleges that he has a ‘‘very strong bond’’

with the child and that the child ‘‘suffers’’ and is ‘‘very

emotional’’ when unable to see him, these allegations

do not rise to the level of neglect, abuse or abandonment. At the most, these allegations suggest that visitation would be beneficial to or in the best interests of

the child, which falls short of the standard set forth in

Roth. See Roth v. Weston, supra, 259 Conn. 226. Furthermore, the petition must state with specificity the type

of harm the child will suffer. See Martocchio v. Savoir,

153 Conn. App. 492, 502, 101 A.3d 953 (2014); see also

Fennelly v. Norton, supra, 103 Conn. App. 140–41

(merely checking box on application for visitation that

stated that ‘‘[t]he applicant has/had a relationship with

the child(ren) that is similar in nature to a parent-child

relationship and denial of visitation would cause real

and significant harm to the child(ren)’’ does not suffice

for specific, good faith allegations required by Roth).

Neither the plaintiff’s petition nor his affidavit specifies

what harm the child will suffer if he is denied visitation.

Instead, the plaintiff asks the court to infer the neglect,

lack of care, or abandonment from his allegation that

the child will ‘‘suffer’’ as a consequence of the termina-
tion of their relationship. This is not enough to establish

subject matter jurisdiction under Roth, which requires

specific, good faith allegations that the denial of visitation will subject the child to real and significant harm.

See Crockett v. Pastore, supra, 259 Conn. 249–50; Roth

v. Weston, supra, 226.

In Clements v. Jones, 71 Conn. App. 688, 695–96, 803

A.2d 378 (2002), this court concluded that the plaintiff

failed to ‘‘allege that a denial of visitation would result

in harm to the child. Rather, the aspects of the application that can be construed as relating to harm state

that the plaintiff often received the child in an ill state,

apparently due to the child’s asthma, and needed to

nurse him back to health, that the plaintiff spent much

time nursing the child back to health, that separation

would be unjust and inhumane to the child, and that

visitation would be in the best interests of the child.

With regard to the specific allegations about the child’s

health and his asthma, we cannot conclude, without

more, that those assertions constitute an allegation that

rises to the level of abuse, neglect or abandonment

contemplated by Roth.’’ In the present matter, although

the plaintiff alleges that he played a significant role in

caring for the child’s ‘‘severe health conditions’’ and

does not currently know who is caring for the child,

we cannot conclude, without more, that these assertions are akin to abuse, neglect, or abandonment as

required by Roth. Accordingly, the trial court properly

determined that the plaintiff’s petition failed to allege

the second jurisdictional element set forth in Roth, and

properly dismissed the petition for lack of subject matter jurisdiction without an evidentiary hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 46b-59 (b) provides in relevant part: ‘‘Any person may

submit a verified petition to the Superior Court for the right of visitation

with any minor child. Such petition shall include specific and good-faith

allegations that (1) a parent-like relationship exists between the person

and the minor child, and (2) denial of visitation would cause real and

significant harm.’’

2

In support of his overarching claim that the court improperly dismissed

his third party petition for lack of subject matter jurisdiction, the plaintiff

claims in his main brief that the court improperly (1) violated his due

process rights when it denied his petition without an evidentiary hearing;

(2) concluded that he lacked standing under § 46b-59; (3) applied § 46b-59

and relevant case law; (4) found that he did not plead sufficient facts that

could be proven through clear and convincing evidence; (5) precluded him

at oral argument from citing to similar trial court cases as persuasive authority; (6) failed to consider public policy; and (7) decided that he did not meet

his burden of proof to invoke the trial court’s subject matter jurisdiction.

Our review of the plaintiff’s briefs reveals that these arguments all contribute

to the plaintiff’s central claim that the court erroneously determined that

he had failed to plead the jurisdictional requirements of Roth. Accordingly,

we address these arguments but do not distinguish between them as separate claims.

3 The plaintiff also argues that the trial court misinterpreted Roth to require

an allegation of unfitness against the parent as opposed to an allegation of

real and significant harm to the child. As an initial matter, we agree that

the harm component of Roth did not require the plaintiff to allege that the

defendant was an unfit parent. See DiGiovanna v. St. George, 300 Conn.

59, 73, 12 A.3d 900 (2011) (‘‘because the requisite harm for obtaining visitation
over a fit parent’s objection is akin to, but falls short of, the neglected,

uncared-for or dependent standard for intervention by the department, parents unsuccessfully may oppose visitation without necessarily being unfit

or in need of such intervention’’). Indeed, the jurisdictional requirements

of Roth presuppose that the parent is not unfit. See Roth v. Weston, supra, 259

Conn. 234 (summarizing jurisdictional ‘‘requirements that must be satisfied

in order for a court . . . to have jurisdiction over a petition for visitation

contrary to the wishes of a fit parent’’).

Upon review of the record, however, we conclude that, in assessing the

sufficiency of the allegations, the trial court looked for either allegations

of unfitness of the parent or allegations of real and substantial harm to the

child. Where the parent is not unfit, there is a constitutionally required

presumption that the parent’s opposition to visitation is in the best interests

of the child. See Crockett v. Pastore, 259 Conn. 240, 249, 789 A.2d 453 (2002);

Roth v. Weston, supra, 259 Conn. 232. It is the plaintiff’s burden to overcome

this presumption ‘‘by alleging and demonstrating that without visitation the

child would suffer real and significant harm.’’ Crockett v. Pastore, supra,

49. Because, in reaching its conclusion, the court explicitly looked for allegations of real and substantial harm to the child, we see no basis for concluding

that the court did not apply the proper standard as set forth in Roth.

4 We note that, at oral argument before this court, the defendant twice

conceded that it was appropriate for the trial court, in determining whether

the plaintiff alleged the jurisdictional requirements set forth in Roth v. Weston, supra, 259 Conn. 202, to consider the factual averments set forth in the

affidavit that the plaintiff filed in support of his objection to the motion

to dismiss. The court observed in Roth, however, that, ‘‘[o]rdinarily, in

determining whether the trial court had jurisdiction over a petition for

visitation, we simply would examine the allegations of the petition and

compare them to the jurisdictional requirements set forth herein.’’ (Emphasis

added.) Id., 235; see also Fennelly v. Norton, 103 Conn. App. 125, 139 n.11,

931 A.2d 269 (‘‘[i]n the absence of any disputed issues of fact pertaining to

jurisdiction . . . we think the admittedly high requirements of Roth, the

strict application thereof and the policy considerations discussed therein

require a court, when confronted with a motion to dismiss for lack of subject

matter jurisdiction predicated solely on the application’s failure to comply

with Roth, to decide that motion on the application itself’’ [emphasis added;

internal quotation marks omitted]), cert. denied, 284 Conn. 918, 931 A.2d

936 (2007); Fennelly v. Norton, supra, 139 (‘‘[b]ecause the defendant’s motion

to dismiss for lack of jurisdiction was predicated on the insufficiency of

the application for visitation, it was inappropriate for the court to look

beyond that pleading and permit the plaintiffs to augment the application

with additional allegations at the evidentiary hearing’’); see also Practice

Book § 25-4 (‘‘[e]very application . . . in an action for visitation of a minor

child . . . shall state . . . the facts necessary to give the court jurisdiction’’

[emphasis added]). Although these authorities suggest that courts determining whether the jurisdictional requirements of Roth have been satisfied

cannot look beyond the four corners of the application itself, we need not

decide that issue in the present case because the defendant does not claim

error in that aspect of the court’s decision, and, moreover, because the facts

alleged in the affidavit, even if considered, are insufficient to satisfy Roth.