Delena v. Grachitorena, 216 Conn. App. 225 (2022) (third party visitation denied under § 46b-59)
Officially released October 25, 2022
In Short: The children’s maternal grandmother failed to prove a parent-like relationship under C.G.S. § 46b-59. The trial court found that Plaintiff failed to demonstrate a parent-like relationship due to lack of credibility in her testimony coupled with the substantial lapse of time since the she last saw the children.
Plaintiff maternal grandmother brought a verified petition pursuant to § 46b-59 for visitation with her two grandchildren. Plaintiff alleged that her visitation with the children was abruptly ended when the children’s paternal grandfather and his wife became the children’s legal guardians after termination of parental rights (“TPR”) of the biological parents in 2017. Plaintiff alleged that she had a parent-like relationship with the children and denial of visitation would cause real and significant harm.
The trial court (Judge Newsom) held an evidentiary hearing in 2021. The only evidence presented was Plaintiff’s testimony. Plaintiff testified that she believed DCF did not award her custody of the children after the TPR because she was not a Connecticut resident during the termination proceedings from 2014-2017. Plaintiff testified that before the TPR she travelled back and forth between Tennessee and Connecticut to help care for the children, provided transportation to and from day care, provided swimming and dancing lessons, took them shopping and to medical appointments, taught them to ride a bike, and got them baptized. Plaintiff testified that after the TPR the guardians denied her access despite several attempts.
The trial court found that Plaintiff had offered conflicting testimony about the last time she had seen the children, as to whether it was 2017 or 2019. The trial court did not find it credible that Plaintiff “recently had” a parent-like relationship, finding that she had only seen them once in four years. The trial court denied the petition. Plaintiff appealed.
Plaintiff claimed on appeal that the trial court improperly applied the factors set forth in C.G.S. § 46b-59 when it determined she did not meet her burden to demonstrate by clear and convincing evidence that she has a parent-like relationship. Plaintiff further argued that the trial court placed improper emphasis on the length of time since she has seen the children.
The Appellate Court set forth the clearly erroneous standard of review regarding the factual findings of the trial court and then set forth the nine factors that the court may consider under C.G.S. § 46b-59 (c) to assess whether there is a parent-like relationship. The trial court was not required to consider all nine factors or to emphasize some over others. The Appellate Court noted the trial court’s finding that Plaintiff’s testimony about the existence parent-like relationship was not credible. The Appellate Court noted that the trial court found that Plaintiff’s relationship with the children had changed “substantially from when it started” and the near total lack of contact since 2017.
Plaintiff argued that the trial court erred in failing to find whether denial of her petition would cause “real and significant harm” to the children. The Appellate Court noted that Plaintiff must carry her burden as to both the parent-like relationship and the real and significant harm. In the absence of a finding of a parent-like relationship, the trial court was not required to consider the potential harm.
The Judgment was affirmed.
This case begs the question as to whether — if what might have previously been a parent-like relationship is impaired by the denial of access — the denial of access itself can prevent the finding of a parent-like relationship due to a time lapse. However, given the four-year lapse of time here (one period of access in either 2017 or 2019, but otherwise no access since 2017) this is not the best test case for that question, and the appellate court did not address that issue.
