Lizzie McNair et al. v. Corley Shannon (2014)

MEMORANDUM OF DECISION

PROCEDURAL BACKGROUND

This vigorously contested matter comes to the court with a lengthy and contested history.   The present proceeding is in the nature of an appeal from probate wherein the plaintiffs are seeking to set aside a probate court order permitting a paternity test so that Corlely Shannon, (hereafter Shannon or defendant) could determine whether or not he is the biological father of a young boy, Bryce McNair (hereafter Bryce).

Bryce was born on November 3, 2011.   On or about December 29, 2011, the defendant filed a Custody Application in the Superior Court at Norwich.   (Docket Number FA 11–4017861S.)   That was a contested matter in which Elizabeth McNair, aka Lizzie McNair and Donette McNair (hereafter plaintiffs) opposed the application and filed a cross complaint.   By way of a thorough and complete review of the law in a Memorandum of Decision, dated September 18, 2012, the defendant's application was dismissed.

Thereafter, the defendant initiated another action in the Superior Court at Norwich in the nature of an Application for Custody.  (Docket Number FA 13–4120958S.)   That matter was similarly dismissed on March 28, 2013 by an Order indicating that the matter be handled by the Probate Court.

This court will take judicial notice of those prior actions involving the same parties.

The instant action was thereafter initiated by the defendant in the New London Regional Probate Court where that court on May 23, 2013, granted the petition for a paternity test to determine if defendant was the biological father of Bryce McNair, a minor.   This appeal followed.

A hearing was held with regard to the appeal on October 23, 2013, at which all parties appeared and were heard.   The defendant represented himself.   The plaintiffs appeared with counsel.   Briefs were filed by the parties on or about November 6, 2013.   Subsequently on December 10, 2013, a hearing was held with all parties present with respect to the appointment of a guardian ad litem for the minor child Bryce.   An order was entered on that date appointing Kelly Babbitt of Norwich, Connecticut, as guardian ad litem to inform the court as to the interests of said minor in this matter.   A report was filed with the court by said guardian on January 29, 2014 with copies forwarded to all parties.   The court entered an Order permitting the parties 15 days within which to respond to the contents of said report.   No such responses have been filed.

FACTS

Based upon the evidence at the hearing, including reasonable and logical inferences from the same and taking into account the court's evaluation of the credibility of the witnesses, together with the contents of the prior cases, the following facts are found.

The plaintiffs, Lizzie and Donette, have been in a romantic relationship for over six years.   During that time about February 2011 Lizzie became pregnant.   The plaintiffs Lizzie and Donette were married on October 15, 2011.  (Same-sex marriage became legal in Connecticut in 2009.   See P.A. 09–13.)   At some time prior to the birth of Bryce the defendant learned of the pregnancy and suggested that if the baby was his Lizzie should have an abortion to terminate the pregnancy.   During the pregnancy Donette provided support and care to Lizzie including going to doctor's appointments with her during complications.   Bryce was born to Lizzie on November 3, 2011 at the Lawrence & Memorial Hospital in New London, Connecticut.   His birth certificate was made out to indicate that Lizzie was his mother and Donette was a “parent.”

Lizzie, Donette and Bryce have lived together as a caring, intact family since Bryce's birth.   They share a family name of McNair.   The plaintiffs share the care and support of Bryce in the daily activities of life working different shifts so that one of them is home for that purpose.   They are both involved in his baths, clothing, feeding and medical care.   They occasionally travel together.   Bryce is covered for medical insurance on Donette's policy from work.   The McNairs share the support of an extended family with frequent visits from relatives who have accepted Bryce as kin.   He has bonded with grandparents and an uncle.   Bryce has the support of a stable family.

The defendant upon learning of the pregnancy had one meeting with the plaintiffs.   He indicated he did not know what he wanted to do.   He was concerned that if he were the father of Bryce it might upset his current girlfriend.   Shannon has two children by two different women neither of whom he married.   He has had a relationship with those children one of whom lived with him for a considerable time and is now over 18.   The other younger child he sees every day.   Apart from the litigation outlined above, the defendant has taken no interest in the parenting of Bryce.   He does not contribute support to Bryce.   He does not visit.   He has not seen Bryce.   The defendant has no relationship with Bryce.   Shannon testified that he initiated the various actions for custody and paternity to “protect himself.”   Historically, he has previously spent four years in prison.   He was a drug dealer, but there was no evidence in any of these cases that he is now involved in any illegal activity.   He is a coach of a youth team.   He works regularly at one of the local casinos as a beverage runner.   The affidavit he filed in an earlier case suggests he earned about $1,800 gross per month at that time.

CLAIMS OF PARTIES

The plaintiffs claim first that the defendant is precluded by the doctrine of collateral estoppel from relitigating the issue of his standing to bring the probate court application.   Secondly, the plaintiffs claim that the probate court lacks jurisdiction to hear the matter because the defendant has no “standing” to pursue the matter, applying the standard set forth in Weidenbacher v. Duclos, 234 Conn. 51 (1995).

The defendant, without specific reference to the legal claims, argues in his brief that he is a good person with good intentions to be a father “if the child in question is in fact mine” (emphasis added).   He has claimed that he would be “cheated” out of being a potential father if he is not permitted to have the determination of a DNA test.

GUARDIAN'S REPORT

The guardian's report was filed on or about January 29, 2014.   In it the guardian ad litem reviewed the background of the situation in which the minor child, Bryce, finds himself.   She has provided the court with her observations of the present condition and circumstances of the minor's living conditions.   The guardian has reviewed the claims of Shannon as well as the prior litigation involving the defendant.

The guardian has indicated that “․ it is in the best interest of Bryce to maintain his family which he has known from birth.   The alternative has the potential to cause disruption in the child's life ․”

THE LAW

This case is not about whether any of the individuals involved are good people or not.   The issue in this appeal from probate is a legal question of whether, under the law, the defendant, Shannon, has standing to proceed in Probate Court with his inquiry into whether or not he is the biological father of Bryce.

In an appeal from probate the superior court exercises the limited statutory jurisdiction and powers of the probate court.  Marshall v. Kleinman, 186 Conn. 67 (1982).   An appeal from the probate court is a de novo proceeding in which the superior court is not limited to the claims raised in the probate court.  Baskins' Appeal, 194 Conn. 635 (1984).   See Connecticut General Statutes, Section 45a–186a.

A thorough legal analysis of the law relating to standing has been reviewed in detail in the memorandum of decision of Judge Shluger in the earlier Superior Court case involving these parties referred to above, and need not be repeated here.   Suffice it to say that the case of Weidenbacher v. Duclos, 234 Conn. 51 (1995), has set forth many factors to be considered in the determination of standing.

CONCLUSION

The facts in this case make it clear that Corley Shannon, the defendant, does not satisfy any of those factors.   First, it is clear that he is not claiming to be Bryce's biological father.   His effort is to determine if he is Bryce's father.   He has not seen the boy.   He does not know the boy.   He has not contributed financially or in any other way to the boy's life needs.   Bryce does not know him.   He had urged Bryce's mother to have an abortion if the child was his.   He did not want any more children, fearing it would cause a problem with his current girlfriend.   To use the defendant's own words he is pursuing this matter to “protect himself.”

On the other hand, from evidence and the report of the guardian ad litem, it is found that Bryce is doing well in a stable, loving, supportive family consisting of his biological mother and her spouse, Donette.   It is also found that to introduce the defendant into the minor's life at this time under these circumstances would constitute a disruption in that stable family situation.

Under these circumstances, applying the law to these facts, the court finds that the defendant does not have standing to pursue a DNA determination as to his parenthood with respect to Bryce.   Accordingly it is found that the probate court does not have jurisdiction for Corley Shannon's application.

The probate court decision is reversed and the application of the defendant is dismissed.

Robert C. Leuba, JTR

Leuba, Robert C., J.T.R.