Opinion
No. KNO FA 00-0121609 S
January 9, 2009
MEMORANDUM OF DECISION ON MOTION FOR CONTEMPT AND INTERLOCUTORY ORDER ON MOTION TO OPEN AND MODIFY JUDGMENT
The authority of the superior court as to matters involving children is divided into two broad categories: a family division, which pursuant to Conn. Gen. Stat. § 46b-1 is charged with adjudicating disputes brought to determine the custody and visitation of children, and a juvenile division, which in its civil session has the duty pursuant to § 46b-121 among other things to oversee all proceedings concerning uncared-for or neglected children. This case is one in which the line of demarcation between these two divisions is less than perfectly clear.
The parties, who never married, are the parents of a boy born on March 10, 1999. Plaintiff filed this application for custody in December of 2000. Eighteen months later, on May 8, 2002, judgment entered (Devine, J.), awarding them joint legal custody with physical residence to be with plaintiff and an access schedule for defendant. That schedule provided that the child spend two overnights per week with his father, as well as additional time at holidays and during summer vacation.
Pending at present are defendant's contempt citation filed August 11, 2008, and his motion to reopen and modify judgment with respect to custody and/or visitation filed August 13. On September 29, the court (Jongbloed, J.) appointed Attorney Frederick Gilman as guardian ad litem, and referred the motion to reopen to the Family Services Office for a complete evaluation of the child's custodial situation. The evaluation is still in process and its projected completion date is February 2, 2009. The contempt citation was continued for various reasons until December 9, 2008, when the undersigned conducted a hearing on that issue alone.
There is no dispute that defendant has not seen his son since July 3 of last year (except for three, court-ordered sessions supervised by the child's therapist). He has been ready, willing, and able to visit his son at the times specified in the 2002 decree, and has satisfied this court that Plaintiff's refusal to allow the child to spend any time with him is the sole reason for the lapse in contact. She does not deny these elements of his prima facie case, instead contending that her son has been so traumatized by an earlier act of sexual abuse by his father that to now allow them to spend time together would be catastrophically harmful.
Plaintiff's failure to literally comply with this court's visitation orders may, but does not automatically, mean that she ought to be found in contempt. In Meehan v. Meehan, 40 Conn.App. 107 (1996), the Appellate Court upheld a trial court's refusal to hold in contempt a mother who thwarted visits between her children and their father because of her fear that he might harm the children. The decision cited a line of cases holding that a contempt finding depends on the facts and circumstances underlying it, including Dukes v. Durante, 192 Conn. 207 (1984), which stated that "it is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order," 192 Conn. 207, 228. A parent bent on contempt, however, cannot expect that subjective protestations of fear will insulate her from a finding that she has willfully defied a court order; she may face sanctions for such behavior including fines and attorneys fees. Thus in Gina M.G. v. William C., 77 Conn.App. 582 (2003), the Appellate Court affirmed a trial court order imposing such penalties upon a mother who alleged that the child's father had sexually abused the child and who had continuously frustrated visits between him and her daughter despite findings that such abuse had not occurred. The court considered the entire record of the dealings between the parents in reaching its decision. The question facing this court is which of these two poles this case most accurately approaches.
Here, the history pertinent to the current controversy begins even prior to the 2002 decree. Defendant's cross complaint, filed December 15, 2000, alleges paragraph 4): "the defendant father is being denied access to the minor child." Plaintiff demanded both paternity testing to prove that defendant was her child's father, and drug testing of the defendant to prove that he was a person with whom the child could be trusted. Attorney Paige Quilliam was appointed as guardian ad litem (GAL). The Family Services Office of this court conducted a full evaluation as to what custodial arrangement would serve the child's best interests; plaintiff demurred from its recommendations. Plaintiff renewed allegations that defendant had purchased or used controlled substances, and Judge Devine found that she had ". . . failed in her burden of proof to convince the court that the defendant engaged in the conduct alleged and would be an inappropriate parent to visit with the minor child." Memorandum of Decision, December 12, 2001, p. 2. From then until the parties' agreement led to the decree of May 8, 2002, nothing further of consequence is apparent on the record.
Indeed, at this contempt hearing plaintiff alleged that substance abuse by defendant was a secondary basis upon which to rest her defense to a contempt finding. There was not a scintilla of evidence from which this court could find that he is now abusing alcohol or using any illegal drug.
The details recited are perhaps all too common to trial courts adjudicating custody disputes, and in their banality fail to warn of deeper problems below the surface of the case. Plaintiff's exhibits in the present proceedings, however, reveal that she was pursuing a parallel strategy with results not apparently made known to this court until after its decree was entered. Among these is Exhibit 3, a lengthy report by the Waterford Police Department of allegations dating back to September of 2001 that defendant had abused the child. The police conducted an appropriate review and concluded that there was no evidence of sexual abuse found. Exhibit 6, a May 17, 2002, letter from the Child and Family Agency of Southeastern Connecticut to the Department of Children and Families (DCF), indicates that the agency had seen the child in this case on six separate occasions in November and December of 2001 for "a sexual abuse evaluation due to mother's . . . concern over statements he had made and behavior he had displayed at home." The child, at that time, was about two and a half years old. That report concluded: "over the course of the evaluation no disclosure was made. [He] was not exhibiting symptomatic behavior of sexual abuse during the evaluation. Therefore, after the evaluation was complete, no further treatment was recommended." Exhibit 7 is a June 17, 2002, "Notification of Investigation Results" sent to plaintiff by DCF concluding "Neglect is unsubstantiated." Her Exhibit 8 is a November 7, 2002, report to the GAL from United Community Family Services evidencing that the mother continued pursuing the sexual abuse investigation even after the conclusions described above, and that this effort also ended fruitlessly.
All of these exhibits may fairly be said to undermine rather than support her theory that this child actually suffered any abuse by defendant. At present, while she insists that they help establish her defense, she categorically asserts that all of their conclusions are inaccurate, and are the result of sloppy or biased investigations which have all been inadequately conducted.
On August 26, 2002, the first of defendant's postjudgment motions for contempt was filed. That motion for the first time brings to the court's attention the existence of plaintiff's sexual abuse allegations against him. On September 23 of that year, the court (Devine, J.), found her in contempt. By way of remedy the court ordered additional access time to defendant to make up for the visits missed. Responding simultaneously to a separate motion filed by the GAL, the court sent the child to two designated individuals for counseling and an evaluation; significantly, the order directed that "no sexual abuse evaluation is to be conducted pending further order of the court." On October 7, 2002, that order was amplified by an order that "neither party will take the child to any other therapist or evaluator without court order."
Next, on January 6, 2003, and again on April 11, 2003, defendant filed his second and third motions alleging contempt on plaintiff's part by denying his access to his son. On June 2, 2003, the court (Devine, J.), found her in contempt for a second time, and again ordered make-up visits to right that wrong.
His fourth and fifth such motions were filed on November 30, and December 1, 2004, and resulted in her being found in contempt a third time, on December 13, 2004. (Swienton, J.). As in the past, additional time for the defendant to be with the child was ordered. Exhibit 5 in the present proceedings, however, reveals that another incident involving sexuality was the precipitator of the 2004 court proceedings. That exhibit is a series of emails between DCF investigators commenting on plaintiff's October 2004 report to DCF of sexual abuse of her son, by defendant, with the same details as she had previously reported in 2002. What led her to make this call to the Department was that sometime in the fall of 2004, when the child was in kindergarten, he was involved in an incident on a school bus involving some form of sexual discussion or contact between him and several peers. Upon discovery of this, plaintiff viewed it as clear proof of her earlier allegations that defendant had abused the child, since no five-year-old could engage in such conduct unless he had himself been violated. Her call to DCF once again led to a Waterford Police Department investigation, and its report is included in her packet marked as Exhibit 3. While the 2004 police report concludes, as did its 2002 report, that there was no evidence of such abuse, the later report also contains the additional interesting fact that the child had at some time prior to 2004 had "a forensic diagnostic interview at Yale New Haven Hospital," with apparent negative results. Defending DCF's 2004 decision not to substantiate plaintiff's pending claim of sexual abuse, one of its agents, in Exhibit 5, betrayed his exasperation: ". . . four regional investigators, Child Guidance, Shoreline Associates, and Waterford PD have, over the past 2.5 years, interviewed this child over and over regarding this issue . . . Does this start to sound like custody/revenge/anything but the truth?" The question is not an idle one.
As noted above, defendant's last regular visit with the child occurred on July 3 of 2008. For three and one-half years, he had been seeing the child regularly without any negative reports made to this court or to any authority. The impression that the lives of the parties and their son had achieved some apparent tranquility in the meantime is, unfortunately, an illusion. Plaintiff used the 2004 incident to reengage the child with counselors of her own choice. By this court's count, he has now been in counseling with or evaluated by no fewer than seven professionals, not counting any police officers, DCF investigators, or school officials who interviewed him in response to that event. For the past ten months plaintiff has been bringing the child to a counselor she selected without conferring with defendant, notwithstanding the fact that the parents have joint custody of the child. This individual has rewarded her persistence, and has diagnosed the child as suffering from post-traumatic stress disorder. This counselor, who has not previously appeared before this court and whose reputation is unknown, possesses only a master's level education. Her assessment of the present condition of the child is four-square on mother's side, and as firmly opposed to father. She recommends that the boy undergo another forensic evaluation. The purpose of this is not to determine if he was in fact abused as a toddler, but to see if there is a causal link between the condition she diagnoses and the ". . . inappropriate acts he says he remembers his father committing towards him as a small child . . ." In other words, she accepts as true the premise that the abuse occurred as mother maintains, and the only question is whether that is the cause of the child's present distress.
On July 3, 2008, the child was visiting his father when, around the time defendant was preparing dinner, the child began playing with a computer in a room not visible from the kitchen. The child is now nine years old. During a period of uncertain duration, he accessed adult websites. He then asked for permission to call his mother, and they spoke "for a long time." Defendant then got on the phone with plaintiff and explained to her what happened. The following day, she informed him that she was suspending further visits effective immediately, and she has prohibited all visits continuously since then.
A parent urging that an isolated instance in which a nine-year-old child accesses pornography on the other parent's computer, in this time of ubiquitously available pornographic material, has an uphill struggle to persuade a court that this event warrants suspending that parent's visitation rights; while such an event should occasion a dialogue between the parents and between them and their child, it is scant justification for six months' interference with this court's visitation orders. To allow her to lay out a Meehan defense, however (and over the objection of the defendant), this court afforded plaintiff (who is now representing herself) great latitude in presenting her case at the contempt hearing.
One of the exhibits she introduced opens the door to an inquiry that goes beyond the contempt vel non question with which the hearing began. Exhibit 4 is a child's writing journal "written and illustrated by" the child in question. Pages one and two describe two animal characters' beach trip. On page three is a new caption: "My Journal July/Aug/Sept. 08, Summer Writing," with the following text in sixteen pages of childish handwriting:
I hate my father, he knows what he did to me but he is not caught/guilty at all! I love my mom, she helped me have a great summer! And I would love it if dad just disapeird . . . My "friend" had told me to go on bad websites, and dad did not checked on me for an hour and a half. I guess I thought I was being cool. That brought back all the memories of Patrice, dad's girlfriend, doing the "naked ballerina dance," making fun of mom's "bootie" and "boobies," two words mom never even used! Then dad threw her out the door naked! And one night when he was naked, he said "Daddy's peepee is ofly ofly fun!" How sick is THAT! I HATE having to be in the same house or state or even COUNTRY as him. And when dad showed me that gun I wished I could use it on him! And if I ever have to go with him again I'm scared that I'm going to get killed!
Plaintiff introduced this as the child's own response to the July incident, and contends that it confirms all that she has maintained throughout these years about the defendant's violation of her son. But there are several problems with her argument. First, if what is set forth above happened as she claims it did, it is not obvious that the child was ever a victim of abuse at all. While it is not this court's present intention to decide that question, the court notes the absence of any appellate authority in this state holding that parental nudity in the presence of a two-year-old is abusive; see, State v. Robert H., 273 Conn. 56 (2005). But there are more important and sinister aspects to this exhibit. In all the reports generated over the past six years that have been made available to this court — and these include a four-page statement plaintiff gave to the Waterford Police Department in April of 2002 — there were no previous references to a female participant in the child's accounts, or to a gun. Further, the court is skeptical that a nine-year-old can so vividly and richly recall the details of an incident he purportedly witnessed at the age of about thirty months. Moreover, even with the several misspellings and errors, this passage seems more syntactically and substantively complex than is within the reach of the average nine-year-old.
For all of these reasons, this court views the text as being probably the product of an adult mind, using this child as an amanuensis. It demonstrates that plaintiff is committed to separating this child from his father, and may have already irrevocably accomplished that by the actions she has taken. Indeed, her child's present counselor, who appeared as her witness, characterized plaintiff as appearing . . . very zealous . . . [and] . . . very adamant about acting to protect and support her son." Ex. 1. The court certainly concurs with that description after observing plaintiff in court over the span of a full day. The court is not doubtful of her belief that she is acting in good faith, but her singular pursuit of her theory in the absence of any corroboration, and her apparent willingness to observe no bounds in accomplishing her ends bring into serious question her judgment and competence as primary parent of this youngster.
At the conclusion of the contempt hearing, the court informed the parties of its concern that whatever may have happened to this child before 2002 (or not) appears to have been eclipsed in subsequent years by plaintiff's invention, exaggeration, or exploitation of that "event," and her failure to properly focus upon the child's development of a healthy attitude towards sexuality as he matures. Plaintiff insisted that the child should receive a psychological evaluation, and volunteered to submit herself to such an evaluation. This court opined that such evaluations of both parents and the child could be quite helpful to any court later deciding the appropriate custody and access orders to impose in this situation and indicated an initial intent to defer a decision on contempt until after such evaluations were completed. Now, however, in light of its review of the plaintiff's voluminous exhibits which it had not read during the course of the hearing, the court believes that while evaluations may still be enlightening to the judge who decides what is in this child's long-term best interests, no good purpose would be served by further delay in adjudication of contempt.
This court finds that plaintiff has refused meaningful visitation between her son and his father consistently between July 3, 2008 and the present. She did this in defiance of this court's order that defendant have access with the child each week for two full days. She has failed to convince this court that she possesses any bona fide defense. The court finds her in contempt.
The hearing did reveal the tragic depth of the child's present estrangement from his father. The court does not ascribe any blame for that to the father. Since plaintiff has three times in the past been found in contempt, and each time sanctioned only to the extent of allowing "make up time," the court believes that to now impose a remedy along the lines previously ordered would be inadequate as a deterrent to future violations of court orders, would not dampen the plaintiff's out-of-court crusade against the father, and would, most importantly, not address this child's underlying need for a restoration of his relationship with his father. This case has become less a custodial dispute between two competent adults, and instead a case in which unchecked and persistent psychological abuse of a child which may have gone on for several years leaves no remedy immediately obvious — in short, the kind of case more appropriately handled in the juvenile court.
Accordingly, the court hereby orders:
1. As a partial response to the contempt, Family Relations shall as soon as possible enroll defendant and the child in the Transitions in Parenting Supervised Visitation Program with the provider closest to the residence of defendant. Plaintiff shall be responsible for the expense of the program, and shall transport the child to all scheduled visits. The court's intent is that visitation return to the schedule originally ordered without undue delay. This program is being ordered for the purpose of easing the child back into his relationship with his father, under the auspices of neutral, trained professionals who can reassure the child and observe any distress which might occur to him in this process. The court notes that the program usually lasts twelve weeks; in the event that no such distress is evident, the program need not be utilized for the full twelve weeks.
2. The pending motion for contempt is continued to February 2, the date upon which the Family Relations Office evaluation is at present expected to be completed. This court will reserve further decision on this motion until review of that evaluation, as well as any relevant information concerning the resumption of visitation as ordered above. In light of the following orders, however, it is foreseeable that the February 2 deadline will not be met; the resolution of this contempt process will then be continued to such later date as the review process may require.
3. Each parent, and the child, shall submit to a psychological evaluation. Given what this court has seen in the present proceedings, this must include an inquiry as to the ability of each parent to foster healthy attitudes on the child's part towards his sexual development, and an assessment of the ability of each to allow the child a healthy relationship with the other. As to the child, the inquiry must include an assessment of whether he now manifests any DSM diagnosable condition, and, if so, a recommendation as to what therapy is indicated to address that condition. The court is not directing that any interactional meeting between the child and either parent occur, but is also not precluding such a technique if the evaluator feels it would be instructive. The parties shall select as evaluator the first of the following individuals who is available to undertake this project: Sue Berry, PhD., of Glastonbury; Don Hiebel, PhD., of Middletown; Keith Roeder, PsyD., of Middletown; Wendy Habelow, PhD., of Avon; or Ken Robson, PhD., of West Hartford. The parties are directed to schedule such evaluations at the earliest possible opportunity, as the separation of the child from one of his parents has already lasted almost six months and requires an informed response. The uninsured cost of the services of the evaluator is to be borne by the parents equally, unless this court orders otherwise after proper hearing. The GAL may assist the parties in setting up these evaluations.
4. Before finalizing its own evaluation, the FRO shall await the results of the psychological evaluation of both parents and the child in order that those results may be weighed alongside the other information learned through its investigation.
5. The plaintiff, personally and through her agents, including the child's present counselor, is enjoined to cease and desist from any discussion with the child of the controversy now before the court involving him, and from any disparagement of defendant to the child. The court is aware of the difficulty of policing this provision, and directs the GAL to remain in regular contact with the child and to alert the court if he perceives that this provision is not being observed.
6. The GAL is further authorized to file with this court any additional motions in this court to protect his ward as he, in his discretion, determines to be necessary, even before the completion of the FRO evaluation. Further, the GAL is directed to ascertain whether the DCF has any voluntary services which might be made available to the child to address the deep estrangement of the child from his father and the potential that that situation was created by his mother. If either parent refuses such services, he is directed to file a petition in the juvenile court alleging that the child is "neglected" or "uncared for" as those terms are defined in CGS § 46b-120(9)(B) and (10), respectively, so that a judicial authority may review the options offered and the objections of the parents to such options. In the event of such a filing, a copy of this order is to be attached to the petition.