Gabriel v. Pritchard

Gabriel v. Pritchard (2000-250); 173 Vt. 452; 788 A.2d 1

[Filed 26-Sept-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-250

                              MARCH TERM, 2001


Tracy R. Gabriel	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Windham Family Court
                                       }	
Brian J. Pritchard	               }
                                       }	DOCKET NO. F113-3-95Wmdm

                                                Trial Judge: John P. Wesley

             In the above-entitled cause, the Clerk will enter:


       Father, Brian Pritchard, appeals the order of the family court
  suspending indefinitely visitation  with his daughter, Briana, and granting
  sole legal parental rights and responsibilities (PRR) to  Briana's mother. 
  Father argues that (1) the court's rulings are not supported by the record,
  (2) he was  not properly noticed for the hearing on mother's motion to
  modify legal PRR, (3) the court  improperly admitted a "past recorded
  recollection" of mother, and (4) the court abused its discretion  when it
  appointed mother's uncle to supervise father's past visits.  We affirm.

       Mother and father were living together in Florida at the time of
  Briana's birth on January 1,  1993.  Shortly thereafter, mother moved to
  Vermont with Briana to live with mother's family, and  father remained in
  Florida.  A Florida paternity decree awarded physical custody to mother,
  granted  father visitation, and awarded joint legal PRR. (FN1)  Father did
  not exercise visitation regularly at  first under the Florida order. 
  Father then moved to Massachusetts in August or September of 1994,  at
  which time he began visiting with Briana regularly for a period of several
  months.  A pattern  developed, however, in which father would schedule
  visitation and then would make changes when  the visit approached.  Briana
  then began resisting his visitation.   

       Father's last visit during this period occurred in March 1995 when he
  absconded with Briana  following an argument with mother, forcing mother to
  call the police.  Father then returned to Florida  in August 1995, but
  mother did not become aware of this until December of that year.  Between 
  March 1995 and July 1996, father did not have any contact with Briana, with
  the exception of a  Halloween card he sent.  Mother sought to modify the
  portion of the Florida decree governing  parent-child contact.  While the
  action was pending, the family court entered a temporary order  setting up
  supervised visitation.  In a final order dated July 18, 1996, the court
  modified father's  contact schedule with Briana, gradually increasing
  visitation to allow Briana to readjust to contact  with her father and
  ultimately reestablishing the schedule set forth in the Florida court
  order. 

 

       Only one day of visitation took place under the court's July 1996
  order.  Because of the prior  incident involving the police, mother's uncle
  was present at the drop-off following this visit.   Mother's uncle is a
  former police officer and volunteers as a guardian ad litem with the
  Windham  Family Court.  According to uncle, father would not at first bring
  Briana inside, and when he did  finally, he stood at the end of the hallway
  with the crying child in his arms, goading mother with  questions about
  whether she really wanted Briana back.  Briana was having trouble breathing 
  because father was squeezing her so hard, and he did not let go until uncle
  approached him, at which  time Briana ran to her mother.  Mother did not
  bring Briana back the next day for visitation because  of this incident. 

       Mother testified that in the months following this isolated visit,
  father called her several times  and left messages, but he did not leave a
  phone number where he could be reached and did not  mention that he was
  interested in visitation.  Mother also indicated that father did not make
  any  contact during Christmas or on Briana's birthdays.  They did receive a
  box of toys before Christmas  of 1996, but there was no note or return
  address with the package.  Mother sent two certified letters  to father
  regarding visitation, both of which went unclaimed.  Mother indicated that
  Briana did not  ask about her father during this period of no contact. 

       Following this period of two and a half years, father contacted
  mother's attorney on April 5,  1999, indicating that he would be coming to
  Vermont to collect Briana for seven days of over-night  visitation starting
  on April 12.  In response, mother filed a motion on April 7 for an
  emergency, ex  parte order modifying visitation.  The family court granted
  the motion, ordering that father have only  supervised visitation for
  several hours a day for the seven-day period.  The court subsequently held
  a  hearing on April 13 at which both parties were present.

       After the hearing, the court established a temporary schedule for
  monthly supervised visitation  and weekly telephone contact for Briana and
  her father, and appointed mother's uncle to supervise  visits.  The court
  noted both at the hearing and in its order that father's failure to
  maintain contact  with Briana as established by the court's temporary order
  could result in suspension of his parent-child contact. 

       Another hearing took place on December 13, 1999.  Father was now
  living in Cheyenne,  Wyoming. (FN2)  Mother stated that Briana had
  developed behavioral problems leading up to and  following the monthly
  visitation with her father, including having bathroom accidents, becoming 
  withdrawn and at other times becoming violent.  Mother also testified that
  father did not use all of  his available visitation days, including not
  showing up for three days of visitation he had scheduled  in October
  without calling ahead to cancel and canceling his July and November
  visitation.  With  respect to the telephone contact, mother testified that
  father called only seven times.  Briana spoke  with him the first time he
  called, but thereafter refused to speak with him.  Mother indicated that
  the  phone calls were sporadic and did not always come on time. 

 

       Mother also testified that she had made all decisions regarding
  Briana's health and welfare  since she left Florida with her in 1993.  She
  and father could not converse constructively about  Briana because father
  continually, and inappropriately, would turn the conversation to mother and 
  father's previous relationship; therefore, she stopped discussing matters
  concerning Brianna with  him. 

       Uncle also testified, relating his observations made while supervising
  father's visits with  Briana.  He chronicled a series of bizarre behaviors
  by father during the visits, including father  incessantly taking pictures
  of Briana.  He described father and Briana's interaction as that of
  "pursuit  and avoidance," with Briana trying to hide from father and often
  crying when father was pursuing  her.  Uncle said that he had also
  witnessed Briana cry and throw tantrums about having to go to  visitation. 

       At the conclusion of the hearing, the family court issued an oral
  decision in which it  determined by clear and convincing evidence that it
  was not in Briana's best interest that she have  continuing contact with
  father.  The court suspended any further parent-child contact and granted 
  mother sole legal PRR.  It subsequently issued a written order setting
  forth in more detail its reasons  for doing so.  Father now appeals. 

       Father argues that the court's findings and conclusions resulting in
  the suspension of his  visitation rights are not supported in the record. 
  We will not disturb findings of fact unless they are  clearly erroneous.
  Nickerson v. Nickerson, 158 Vt. 85, 88-89, 605 A.2d 1331, 1333 (1992).  
  Therefore, on appeal "our role is limited to determining whether they are
  supported by credible  evidence."  In re D.C., 168 Vt. 1,4, 712 A.2d 902,
  904 (1998) (internal quotation marks omitted).   Furthermore, "[g]ranting,
  modifying, or denying visitation is within the discretion of the trial
  court  and will not be reversed unless its discretion was exercised upon
  unfounded considerations or to an  extent clearly unreasonable upon the
  facts presented." (FN3)  Gates v. Gates, 168 Vt. 64, 74, 716 A.2d 794, 801
  (1998) (internal quotation marks and citations omitted).

       We have noted "[i]t is conceivable that a court could find visitation
  so inimical to the interests  of a child that visitation would be greatly
  circumscribed or even denied.  Indeed, our own cases  provide that
  visitation may be denied upon a showing of good cause."  Fenoff v. Fenoff,
  154 Vt. 450,  452, 578 A.2d 119, 120 (1990); see also Lane v. Schenck, 158
  Vt. 489, 499, 614 A.2d 786, 791  (1992) ("In contrast to custody cases . .
  . visitation cases involve only the question of maintenance of 
  associational ties.") (internal quotation marks and citation omitted).  On
  the other hand, "the  suspension or recission of a noncustodial parent's
  visitation rights is a grave matter and one not to be  entered into
  lightly."  Gates, 168 Vt. at 74, 716 A.2d  at 801; see also 15 V.S.A. § 650
  (declaring  public policy that children be afforded maximum contact with
  both parents unless "direct physical  harm or significant emotional harm to
  the child . . . is likely to result from such contact").  When a 

 

  court seeks to suspend indefinitely a parent's right to visitation, due
  process requires that the court  find that it is in the child's best
  interest by clear and convincing evidence.  Mullin v. Phelps, 162 Vt.  250,
  267, 647 A.2d 714, 724 (1994).  

       The court based its decision to suspend father's visitation on its
  findings that father repeatedly  failed to establish consistent and
  sustained contact with Briana, that he failed to demonstrate genuine 
  concern for Briana's emotional development, and that he has never made
  efforts to provide  appropriate parental support or establish a meaningful
  relationship with Briana.  In so doing, it  determined that father's
  proffered explanations and excuses for his behavior were neither
  satisfactory  nor credible.  See In re A.F., 160 Vt. 175, 178, 624 A.2d 867, 869 (1993) ("We leave it to the sound  discretion of the family court
  to determine the credibility of the witnesses and to weigh the 
  evidence.").  Contrary to father's contentions, however, the court did not
  base its decision to suspend  visitation on its determinations of father's
  credibility, but rather on his conduct and his unsatisfactory  explanations
  for it.  The court also determined that father's sporadic contact and
  inappropriate  behavior when he did make contact were causing Briana
  emotional stress, as well as distress,  reflected in her behavior.  It
  concluded that continuing contact with father would be "destructive to  her
  well-being, and antithetical to her best interest." 

       The record reflects that father did not visit with Briana regularly
  until she was a year and a half  old, and then only for a period of several
  months.  A gap of roughly a year then followed with little  or no contact. 
  Father visited with Briana only once, in August of 1996, under the family
  court's July  1996 order.  Father did not have contact again with Briana
  until April 1999 under the court's  emergency order.  Finally, father's
  contact following the court's temporary order of April 1999  continued to
  be inconsistent, including three days of prearranged visitation missed
  without notice.   Mother testified to drastic changes in Briana's behavior,
  including bathroom accidents, bouts of  violence, periods of withdrawal and
  extreme emotional distress surrounding the monthly visitation  with father. 
  On this record, we cannot say the court's findings lack support.

       Father also specifically challenges the court's factual finding that
  he failed to prosecute a  motion to enforce visitation he filed in August
  1996 (father concedes that the time to appeal the  failure of the court to
  hold a hearing has long since passed; rather he simply argues that the
  factual  finding is clearly erroneous and should not have played a role in
  the court's disposition).  The record  reflects that father filed a motion
  to enforce the family court's July 1996 order in early August 1996.   The
  family court advised that a hearing could not be scheduled for the week of
  his motion due to the  lack of an available judge.  The court indicated,
  however, that a hearing would be scheduled at the  earliest possible date,
  taking into consideration father's availability.  The docket entry made by
  the  clerk regarding this order states:

    I handed [father] the motion/reaction form for his motion for
    emergency  hrg on parent/child contact and asked him when he could
    be available for a  hearing.  He stated that he could be available
    only this week.  I explained  that the Judge had written there was
    no available Court time this week. . . .  He tossed the motion
    reaction form, the motion and affidavit back on the  counter and
    told me to keep it.

  Father subsequently filed a notice of appeal from the earlier order of the
  court asserting jurisdiction  over the parties, but never responded
  regarding his availability for a hearing on his motion to 

 

  enforce.  While his appeal was pending, the trial court clerk sent a letter
  to father again inquiring  about his availability for a hearing on his
  motion to enforce, also sending a copy to the attorney  representing him in
  his appeal.  There was no response to this inquiry either.  On this record,
  we  cannot say the trial court's factual finding was clearly erroneous.

       Father also argues that the order suspending his parent-child contact
  is unsupportable in the  absence of expert testimony.  The court determined
  it was not needed due to the "patent  inadequacies" in father's history of
  involvement with Briana.  Given that expert evaluations in family  court
  proceedings are merely advisory, Mansfield v. Mansfield, 167 Vt. 606, 607,
  708 A.2d 579, 581  (1998) (mem.), they are not a necessary component for a
  court to make a determination of the best  interests of a child, especially
  when the record presents little complexity.  Cf. Larson v. Candlish,  144
  Vt. 499, 502, 480 A.2d 417, 418 (1984) (although ordinarily professional
  standard of care in  medical malpractice cases should be established by
  expert testimony, when violation is apparent,  expert testimony is not
  necessary).  The court also noted that father had not sought, nor
  proffered, an  expert evaluation until he submitted his proposed findings
  after the hearing.  Because the court's  findings are adequately supported
  by credible evidence in the record and its disposition was squarely  within
  its discretion given the facts of this case, we will not undo its
  suspension of father's parent-child contact. (FN4) 

       Father next argues that, because he was not provided sufficient notice
  of mother's motion to  modify legal PRR under V.R.F.P. 4, the court was
  foreclosed from considering mother's motion.   After the final hearing on
  mother's motion to modify parent-child contact was scheduled for  December,
  mother filed a motion to also modify legal PRR.  A copy of the motion was
  sent to  father's attorney.  The trial court then attempted to serve father
  with notice of the motion and the  court's order regarding the motion via
  certified mail.  Father, however, refused receipt of the letter,  and the
  court became aware of this the day of the December 13 hearing. (FN5) 
  Father's attorney  stated to the court at the hearing that father did not
  wish her to represent him on the issue of legal  PRR.  Rather, her
  representation was limited to the issue of parent-child contact; therefore,
  she could  not accept service for him.  Father was served personally with
  mother's motion and the court's order  in the middle of the hearing. 

       V.R.F.P. 4(j)(2)(B) and (b)(2)(B)  provide that, in cases involving
  minor children, service of  motions to modify PRR may be made either in
  person or via certified mail, and, if service via  certified mail is
  refused, the clerk may simply effect service by ordinary first class mail. 
  Given that  the clerk served notice in person following father's refusal of
  service by certified mail, we cannot say  that father was denied due
  process by the clerk's failure to use the alternative means of ordinary
  first  class mail that is provided in Rule 4.  See Mullane v. Cent. Hanover
  Bank & Trust, 339 U.S. 306,  314 (1950) ("An elementary and fundamental
  requirement of due process in any proceeding which is  to be accorded
  finality is notice reasonably calculated, under all the circumstances, to 


 

  apprise interested parties of the pendency of the action and afford them an
  opportunity to present  their objections.") (emphasis added); Walker v.
  City of Hutchinson, 352 U.S. 112, 115 (1956)  ("notice required will vary
  with circumstances and conditions"). 

       Father also contends that the court committed reversible error by
  admitting a journal mother  kept over the duration of the court's temporary
  order granting father supervised visitation.  The court  admitted it as a
  past recorded recollection.  To be admissible under Rule 803(5), the
  witness for  whom the recorded recollection is offered must have an
  insufficient memory such that the witness is  unable to testify fully and
  accurately.  V.R.E. 803(5); State v. Marcy, 165 Vt. 89, 92, 680 A.2d 76, 78 
  (1996).  Given that mother testified extensively about the substance of
  matters addressed in the  journal and in fact used the journal to refresh
  her memory, the requirements for the journal's  admission under the past
  recorded recollection exception to the hearsay rule were not met.  V.R.E. 
  803(5).  Nevertheless, its admission was harmless error given that mother
  testified extensively on the  identical subject matter covered by the
  journal - because mother used the journal to refresh her  memory, her
  testimony in essence tracked the journal's contents.  Cf. Trombley v.
  Southwestern Vt.  Med. Ctr., 169 Vt. 386, 396, 738 A.2d 103, 110 (1999) (no
  prejudice where excluded evidence was  cumulative and duplicative of
  evidence elicited from other sources).  Furthermore, because mother's 
  motion was heard by the court as opposed to a jury, the danger of the
  journal being given undue  weight by virtue of its admission (as opposed to
  being simply read into the record as required by  Rule 803(5)), was
  minimized.  See Reporter's Notes, V.R.E. 803 ("The rule allows only the
  reading  of the record to the jury to avoid the danger that undue weight
  might be given to the document  itself.").

       Finally, father argues that the court abused its discretion by
  appointing mother's uncle as  supervisor for father's visitation, and,
  therefore, the court should not have taken into account his  testimony
  regarding his observations during father's visits with Briana.  We discern
  no such abuse of  discretion.  See Bissonette v. Gambrel, 152 Vt. 67,
  69-70, 564 A.2d 600, 601 (1989) ("trial judge has  a broad discretion in
  determining what is in the best interests of children") (internal quotation
  marks  and citation omitted).  As the court noted, uncle was less than an
  ideal appointment given that he and  father did not have a good
  relationship, but uncle was well-qualified: he served as a guardian ad 
  litem and had prior experience as a visit supervisor for other parties. 
  Lastly, and again as the court  noted, father was a relative stranger to
  Briana at the time he reinitiated contact with her, and the  presence of
  uncle likely had a beneficial effect for her.  In custody matters, "[t]he
  focus of the court's  decision must be the best interest of the child, not
  equity between the parties."  Id. at 70, 564 A.2d  at  602.  Consequently,
  we cannot say that the court exercised its discretion in a way that was
  clearly  unreasonable.  See Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988).

       Affirmed.  

------------------------------------------------------------------------------
                                 Dissenting


       SKOGLUND, J., dissenting.  Because I cannot agree that the drastic
  step of suspension of parent-child contact between father and Briana was
  warranted in this case, I respectfully dissent.  The record  does not
  sufficiently support a determination that continuing contact between father
  and Briana  would be so inimical to the child's best interest that it
  should be indefinitely terminated.   Furthermore, given that the trial
  court based its suspension of parent-child contact on father's failure  to
  maintain "consistent and nurturing contact" with Briana, I am concerned
  that we are confronted  with what will be in practical effect a permanent
  termination of father's relationship with his 
                                      
 

  daughter.  I believe that trial court's ordering such was not within the
  bounds of reasonableness in  light of the evidence before it, and therefore
  constituted an abuse of discretion.  Thus, I would  reverse and remand for
  reconsideration of the numerous and less drastic alternatives to this 
  disposition.

       I take no issue with the Court's recitation of the relevant standards
  of review, but disagree  with their application in this case.  As we have
  taken pains to point out, a court order which  undertakes the significant
  step of severing a parent-child relationship is a serious matter.  Gates v. 
  Gates, 168 Vt. 64, 74, 716 A.2d 794, 801 (1998).  The Legislature, as a
  matter of public policy, has  adopted a goal of maintaining "maximum
  continuing physical and emotional contact with both  parents" absent some
  demonstrable and significant threat to the child's emotional well-being.  
  15 V.S.A. § 650 (also urging continuing maximum contact absent a threat of
  direct physical harm).   We have determined that, when a court in effect
  terminates contact between a parent and child in the  context of divorce,
  the decision, although discretionary, requires a higher standard of proof. 
  Mullin  v. Phelps, 162 Vt. 250, 267, 647 A.2d 714, 724 (1994).  In other
  words, such decisions and the  record giving rise to them should be the
  subject of greater scrutiny.

       The record in this case reveals that father's contact with Briana has
  been sporadic over the  years.  The evidence also demonstrates that
  father's own life lacks consistency.  Furthermore, based  on the testimony
  of mother's uncle, it would appear that father did not handle himself well
  in the  course of his visits with Briana, although this must be put in the
  context of the fact that the visits  were supervised by a relative of
  mother's with whom father had a very poor relationship.   Furthermore,
  neither father nor Briana has received educational or emotional supports
  such as those  traditionally available to parents and children prior to
  termination of a parent-child relationship  pursuant to 33 V.S.A. §§ 5531 &
  5532.  As a result, we have no evidence and are left to speculate at  how
  such services would benefit the two.  Cf. In re J.T., 166 Vt. 173, 180, 693 A.2d 283, 287 (1997)  (noting in case where parents had received parenting
  skills class, mental health services and marriage  counseling, that "[a]ny
  assistance SRS provides to troubled parents is . . . a factor in
  determining  whether SRS met its burden" in termination cases).  Clearly
  the transition back to regular contact  with father had been difficult for
  Briana after a period of no contact.  But this falls short, in my  opinion,
  of the "significant emotional harm" contemplated by § 650 that would
  preclude ongoing  contact between a parent and child.  I do not believe
  that Briana's difficulty adjusting to resumption  of contact demonstrates
  that continuing contact with father is so inimical to Briana's best
  interests  that it should be enjoined by a court indefinitely without first
  making an attempt to get the parties  outside help.

       The majority points out that father could seek modification of the
  court's moratorium on  contact with his daughter at a later date.  While
  this is true as a matter of law, I fear in this case it is  not a realistic
  possibility.  The trial court grounded its suspension of father's
  parent-child contact on  his inconsistent visitation with Briana.  Given
  that the court has prohibited any further contact, it  would be impossible
  for father to demonstrate an improvement or positive change in this 
  circumstance such that the resumption of visitation would be merited. 
  Rather than facilitating a  relationship between parent and child, the
  court's order suspends it and simultaneously by its own  terms forecloses
  any future possibility or hope of father's redemption.

       In circumstances such as this case presents, there are myriad
  resolutions available to the court  short of terminating the parent-child
  relationship.  The court's concern about the anxiety father's 

 

  resumption of visitation with Briana  provoked in her could have been
  addressed through counseling.  Counseling would be especially helpful here,
  where the parties have an extremely acrimonious  relationship that might
  stand in the way of mother helping Briana adjust to the reintroduction of
  her  father into her life.  Ordering supervision and support by a
  qualified, neutral third party is precisely  what the trial court did when
  faced with similar circumstances in Fenoff v. Fenoff, 154 Vt. 450, 578 A.2d 119 (1990).  In Fenoff, father and son had not visited with one
  another for three years, in part  because son had refused to participate in
  visitation.  Id. at 451, 578 A.2d  at 120.  Son had professed a  hatred of
  his father and harbored a deep animosity toward him; the trial court also
  found that he was  experiencing deep pain over his parents' divorce.  Id.
  at 451-52, 578 A.2d  at 120.  Furthermore, when  father had attempted to
  visit son at mother's home, she had refused to let him in.  Id.  The court 
  constructed an order that allowed for a gradual reestablishment of the
  parent-child relationship in a  safe, therapeutic setting - ordering
  counseling for both son and father, and allowing the counselor to 
  determine when son was ready for contact with father.  Id. at 452, 578 A.2d 
  at 120.  An order akin to  this would have been well within the bounds of
  the trial court's discretion, but simply terminating the  relationship when
  faced with such difficult circumstances was not.

       Because I do not believe that the facts of this case present the
  extreme situation where all  contact between parent and child should be
  severed, I would reverse and remand to allow the trial  court to craft a
  less draconian resolution.  I am authorized to say that Chief Justice Allen
  (Ret.) joins  in this dissent.  




  Dissenting:	                       BY THE COURT:



  ________________________________     _______________________________________
Marilyn S. Skoglund, Associate         Jeffrey L. Amestoy, Chief Justice
                     Justice 

_________________________________      _______________________________________
Frederic W. Allen, Chief Justice       James L. Morse, Associate Justice
  (Ret.) Specially Assigned	
                                       _______________________________________
                                       Denise R. Johnson, Associate Justic


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                                  Footnotes


FN1.  The actual order appears nowhere in the record, rather the family
  court characterized the  Florida decree as such.

FN2.  Father had testified at the April hearing that he had numerous
  addresses and was on the  road most of each month for his job. 
  Specifically, he noted that he maintained a Florida driver's  license
  listing his sister's address, but was renting a room at an address in Fort
  Collins, Colorado.   He also had a mailing service in Aurora, Colorado and
  maintained an office in Brigham City, Utah. 

FN3.  The dissent notes that there is no dispute regarding the applicable
  standard of review in this  case.  Indeed, this case appears to be simply
  another example of the disparate approaches with regard  to applying the
  standard of review in child custody matters that this Court takes.  This
  very issue was  addressed at length in the parallel dissents in Cloutier v.
  Blowers, 12 Vt. L. W. 189, 191-95 (2001)  (Dooley, J., dissenting), and
  Spaulding v. Butler, 12 Vt. L. W. 195, 200-03 (2001) (Dooley, J., 
  dissenting). 

FN4.  We note that, although the suspension of parent-child contact is
  indefinite, father may still  move to modify the court's order at a later
  date should father's, mother's or Briana's circumstances  change.  See 15
  V.S.A. § 668.

FN5.  Father testified that he refuses all certified mail and that he did
  not know that the letter he  refused was from the court.