Bell v. Squires

Bell v. Squires (2002-314); 176 Vt. 557; 845 A.2d 1019

2003 VT 109

[Filed 10-Dec-2003]

                                 ENTRY ORDER

                                 2003 VT 109
  	

                     SUPREME COURT DOCKET NO.  2002-314

                            SEPTEMBER TERM, 2003

  Leola Stryffeler Bell	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Caledonia Family Court
                                       }	
  Daron Squires	                       }
                                       }	DOCKET NO.  232-9-00 Cadm

                                                Trial Judge: M.  Kathleen Manley
  	

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


       ¶  1.  Mother appeals a family court order awarding sole legal and
  physical custody of her two children to their natural father.  Mother
  contends that the court erred by ignoring the best interests of the
  children, that it failed to give sufficient weight to her role as the
  children's sole care giver over the last three years, and that it wrongly
  punished her for resisting the court-ordered parent-contact schedule with
  father.  We affirm.

       ¶  2.  This case began as a parentage action filed by the Office of
  Child Support against father to establish paternity, parental rights and
  responsibilities, and child support for the younger of his two children. 
  Father, who had no contact with either child for three years, requested
  enforcement of parent-child contact against mother so he could see both
  children.  The court ordered supervised visits "with the goal of
  establishing consistent, ongoing parent-child contact between the children
  and Dad."  Mother's recalcitrance regarding visitation, however, led to a
  series of hearings and court interventions, appointment of a
  parent-coordinator, schedules for supervised contact, and the appointment
  of an attorney and guardian ad litem for the children.  Despite these
  actions, the dispute over parent-child contact escalated, including
  repeated incidents in front of the children and unsubstantiated claims of
  sexual abuse filed by mother.  Finally, in late 2001, father filed an
  emergency motion to modify parental rights and responsibilities seeking to
  obtain legal and physical custody over the children.  It is this custody
  dispute that is now before this Court. 
   
       ¶  3.  The parties lived together from sometime in 1996 until
  October 1997, but were never married.  They are the biological parents of
  two children.  At the time of this appeal, the older child was seven and
  the younger was five.  When the parents separated, mother was seventeen and
  pregnant with the younger child.  The older child was thirteen months old. 
  At separation, the parties stipulated to a relief from abuse order against
  father, but waived findings of abuse.  The RFA order was later amended to
  provide for supervised visits between father and the older child. Father
  never exercised his right to see the child, and the RFA has since lapsed. 

       ¶  4.  In January 2001, father's parentage of the younger child was
  established by genetic testing.  Two case-manager conferences were
  scheduled to determine parental rights and responsibilities.  Mother was
  unavailable for both.  The court then set the matter for a hearing in
  March, following which it issued a temporary order for parental rights and
  parent-child contact.  The order awarded sole legal and physical custody of
  both children to mother, but gave father one hour, one day a week of
  supervised contact with his children.  The court scheduled a follow-up
  hearing sixty days later to determine whether the supervised visits should
  continue.

       ¶  5.  By the time of that hearing, only one visit had occurred due
  to various reasons, including the inability of the supervisor, Family Tree
  Access Center (FTAC), to reach mother.  Then, the second visit  was marred
  by the first of what the trial court calls "many instances of inappropriate
  behavior by Mom in front of the children."  After delivering the children
  for the visit, mother remained on the premises hidden in the bathroom
  contrary to the center's protocol.  Later, when the younger child ran out
  of the supervised visitation room in the direction of the bathroom, father
  followed and picked up the child.  Mother exited the bathroom screaming
  hysterically and accused father of taking the child to the bathroom.  She
  told the center's director, in the presence of the children, that defendant
  had "molested the older child as an infant" and that she was afraid he
  would kill her and the children.  Mother terminated the visit.

       ¶  6.  Two visits later, the parties agreed that father and a case
  worker would take the children to a restaurant.  Mother followed them,
  again against the center's rules.  While eating, the younger child climbed
  under the table.  Father, in the presence of the supervisor, picked the
  child up.  Later that day, mother reported to the same supervisor that she
  had seen father lift the older child and that the child was complaining
  about arm pain.  She put the older child on the telephone, and the child
  told the supervisor about the arm pain.  The next day mother advised that
  the arm had been x-rayed and showed a dislocation. FTAC officials requested
  copies of the medical records, but they were never provided.  At trial, the
  supervisor testified that nothing untoward happened at the restaurant, and
  that father picked up the younger child, not the older child.  As a result
  of these incidents, FTAC opted not to supervise any more visits until
  mother was able to abide by its visitation rules.

       ¶  7.  At the next hearing, in July, the court issued a revised
  parent-child contact schedule extending supervised contacts with father to
  two hours.  The order also prohibited mother from being within 500 feet of
  any place where the contact was occurring or from causing any individual to
  follow, observe, or interfere with a visit.   However, the conflicts
  continued.  So, in August, the court referred the matter to a
  parent-coordinator with directions to help the parties achieve an extended,
  unsupervised contact schedule.
        
       ¶  8.  A month later, mother brought one of the children to the
  doctor's office to be examined for sexual abuse.  The doctor reported the
  allegations to Social Rehabilitative Services.  During the resulting
  investigation, mother reported three different stories to SRS: first, that
  she took the child to the doctor because something was wrong and only
  learned about the abuse while at the doctor's office; second, that the
  child told her about the abuse, which caused her to go to the doctor; and
  third, that the sexual assault occurred at FTAC and that she saw it happen. 
  FTAC reported, however, that father had never once been left alone with
  either child.  SRS concluded that the allegations were unsubstantiated. 
  The investigation once again delayed expansion of contact between father
  and the children. 

       ¶  9.  Mother raised many other obstacles. During the early visits,
  mother asked FTAC to prevent the children from eating any food supplied by
  father, out of fear that he might intentionally contaminate the food. 
  Later, mother refused to allow visits to expand from five to seven hours as
  scheduled on grounds that the children came home hungry after visiting
  their father.  Mother also objected to father's mother seeing the children,
  alleging that the grandmother had threatened to remove the older child from
  the hospital at birth, and had to be barred from seeing the newborn by
  hospital staff. 

       ¶  10.  Despite court orders to the contrary, mother and her family
  continued to follow father, both during visitation periods and when he was
  alone or with his wife.  Mother's father once followed father and his wife
  into a restaurant and, while standing immediately behind them in line, said
  that if they were talking about him, he "will become your worst nightmare." 
  The court found that there was substantial credible testimony that for a
  year after the parties separated, members of mother's family harassed
  father and threatened to falsely report him as a child molester.  The court
  concluded that to some degree this explained why father had never sought to
  enforce contact with the older child.  

       ¶  11.   The parent-coordinator's efforts to meet mother's new
  husband or mother's  extended family were rebuffed.  While on a conference
  call regarding the Christmas 2001 holidays with mother and an FTAC staffer,
  the parent-coordinator asked mother to go to another telephone because of
  screaming and shouting by other people at mother's location.  Instead,
  mother called the police to complain that FTAC and the parent-coordinator
  were harassing her and her family.  The police launched an investigation,
  and both FTAC and the parent-coordinator were told never to call the
  mother's home again.  Ultimately, because of these complications, no
  holiday contact occurred between the children and father. 

       ¶  12.  The court, however, ordered visits to resume.  The next
  March, mother reported father for sexual abuse. In the resulting
  investigation, the child again failed to confirm the allegation and no
  physical evidence of abuse was found.  SRS concluded that the report of
  abuse was unsubstantiated.       
        
       ¶  13.  In late 2001, father petitioned the court to modify custody. 
  After four days of hearings the court granted legal and physical custody to
  father.  But, because of the age of the children, and the adjustment
  required in moving their primary residence, the court concluded that it was
  in the children's best interest to have extended contact with the
  non-custodial parent (now mother).  Thus, the court ordered that the
  children shall reside with mother three weekends a month, plus alternating
  vacations and holidays.  Mother now appeals.

       ¶  14.  A family court may change a custody order only when the best
  interests of the child so require.   Habecker v. Giard, 2003 Vt. 18,  5,
  820 A.2d 215, 217; 15 V.S.A. § 665.  "The burden for such a showing remains
  on the moving party, and, due to the value of stability in a child's life,
  it is a heavy one."  Habecker, 2003 Vt. 18, at  5.  In determining the best
  interests of the child, the court must take into account all relevant
  evidence, including the factors set forth in 15 V.S.A. § 665(b). Cloutier
  v. Blowers, 172 Vt. 450, 452, 783 A.2d 961, 963 (2001).  Within the custody
  context, however, the family court has broad discretion.

    When reviewing the factual findings of a trial court we view them
    in the light most favorable to the prevailing party below,
    disregarding the effect of any modifying evidence, and we will not
    set aside the findings unless they are clearly erroneous.  We will
    uphold factual findings if supported by credible evidence, and the
    court's conclusions will stand if the factual findings support
    them.

  Id. (internal quotations and citations omitted).  Although mother argues
  that the trial court's factual findings are generally not supported by
  credible evidence, she does not cite to any specific finding that is in
  error.  Thus, we will not review the court's factual findings.  See In re
  Estate of Swinington, 169 Vt. 583, 584 n.*, 733 A.2d 62, 63 n.* (1999)
  (mem.) (Court will not search the record for error on issues inadequately
  briefed).

       ¶  15.  Mother raises three claims of error regarding the family
  court's conclusion that the nine factors in 15 V.S.A. § 665(b) and the best
  interests of the children favored awarding custody to father.  First, she
  argues that the court erroneously concluded that she could not foster a
  positive relationship between the children and their father under §
  665(b)(5), and that the court improperly made this the dispositive factor
  in awarding custody to father.  Second, she argues that the trial court
  should have instead given primary weight to the quality of the children's
  relationship with her under § 665(b)(6), and that this factor
  overwhelmingly favored her given that she was the children's primary
  caretaker since birth and the sole caretaker for three years.  Third, she
  challenges the trial court's conclusion that the remaining § 665(b) factors
  were either neutral or favored giving custody to father.  We disagree with
  all three claims. 
   
       ¶  16.  Regarding the first claim, mother disputes the trial court's
  conclusion that she made little, if any, progress in recognizing the
  children's need to have contact with their biological father. Mother argues
  that this conclusion is "speculative," and contends that instead of her,
  "the biggest factor in the alienation of the Defendant from his children
  was his abandoning them during three of the most formative years of their
  young lives."  Mother points to testimony by the parent-coordinator and
  FTAC staff that her concerns were genuine.  She also argues that, although
  the process of re-establishing the children's relationship with an unknown
  father was difficult, the court's conclusion that she was trying to
  alienate the children from their father is refuted by the simple fact that
  the relationship had slowly, but steadily improved. 

       ¶  17.  In looking to the record below, however, we find ample
  evidence to support the trial court's conclusion that mother and her family
  repeatedly acted to prevent the children from forming a positive
  relationship with father - both at the time of separation and today.  The
  court heard substantial testimony that mother and her family members
  repeatedly harassed and threatened father in 1997 and 1998, thus causing
  him not to enforce his right to parent-child contact with the older child. 
  The evidence also showed that once father did seek to enforce his right of
  contact beginning in 2001, the threats and harassment resumed.  Mother made
  false reports of sexual and physical abuse; she accused father in front of
  his children of wanting to "kill" her and them, and of contaminating their
  food; she refused to let supervised visits occur, missed visits, shortened
  visits; she made false police reports against FTAC staff; and she and her
  family harassed father and his new wife.  The family court commented that
  mother's attempts to manipulate the court, FTAC, health care providers, and
  SRS in order to stop contacts was "unparalleled" in the court's experience,
  and concluded that the "credible evidence establishes by a landslide that
  it will be a long time coming, if ever, before Mom will have any ability to
  foster a positive relationship with Dad."  Because this conclusion is amply
  supported by the court's findings, and the findings are well grounded in
  the evidence, we will not disturb it.  Begins v. Begins, 168 Vt. 298, 301,
  721 A.2d 469, 471 (1998) ("Given its unique position to assess the
  credibility of witnesses and weigh the evidence, we will not set aside the
  court's findings if supported by the evidence, nor its conclusions if
  supported by the findings.").  

       ¶  18.  Moreover, we disagree that the trial court must wait until a
  parent actually succeeds in alienating the child from the other parent
  before applying this factor.  See 15 V.S.A. § 665(b)(5) (requiring court to
  evaluate "the ability and disposition of each parent to foster a positive
  relationship and frequent and continuing contact with the other parent")
  (emphasis added).  The court concluded that the evidence showed that the
  children "enjoyed their time with Dad," but rather than let that bond
  develop, mother continually sought to "instill[] fear and guilt in her
  [children] about that relationship."  The mere fact that mother had not
  wholly succeeded in preventing the relationship from taking root is not a
  basis to reverse this conclusion, nor does it make the court's conclusions
  speculative or less weighty.  To the contrary, as we have repeatedly
  observed, "a child's best interests are plainly furthered by nurturing the
  child's relationship with both parents, and a sustained course of conduct
  by one parent designed to interfere in the child's relationship with the
  other casts serious doubt upon the fitness of the offending party to be the
  custodial parent." Begins, 168 Vt. at 301, 721 A.2d  at 472 (citing Renaud
  v. Renaud, 168 Vt. 306, 309, 721 A.2d 463, 466 (1998)).  
        
       ¶  19.  Mother's second argument is that the trial court erroneously
  gave too much weight to 15 V.S.A. § 665(b)(5), and should instead have
  looked primarily to the sixth factor, "the quality of the child's
  relationship with the primary care provider, if appropriate given the
  child's age and development." 15 V.S.A. § 665(b)(6).  Generally this factor
  is dependent upon the quality of the child's relationship with the
  custodial parent and is "entitled to great weight unless the primary
  custodian is unfit." Harris v. Harris, 149 Vt.  410, 418, 546 A.2d 208, 214
  (1988).  In the absence of evidence of the likely effect of the change of
  custody on the child, as mother alleges happened here, "the court should
  ordinarily find that the child should remain with the primary custodian if
  that parent is fit." Id. at 419, 546 A.2d  at 214.

       ¶  20.  We disagree with mother's premise that there was insufficient
  evidence of the quality of mother's relationship with the children or of
  the likely effect of the change of custody on the children.  The court
  found that although mother and the children have a close bond, the quality
  of their relationship is negatively affected by mother's quick temper, her
  habit of negative interactions with others in front of the children, the
  extreme disproportion between her fears and actual circumstances, her
  apparent inability to draw appropriate boundaries between herself and her
  extended family in making decisions about her children, and her failure to
  focus on the children's needs as opposed to her own or those of her
  extended family.  In contrast, the court concluded that father had shown
  that he was better able to foster positive emotional development of the
  children, that he could provide a safe and stable environment, and, most
  importantly, that he was willing to put their needs ahead of his own, as
  evidenced by "his repeatedly agreeing to unrealistic demands of Mom in an
  effort to implement a normalized contact schedule."   The court
  appropriately weighed this evidence and the other statutory factors in
  concluding that a change of custody would be beneficial to the children. 
  Thus, we find no error.  Cf. Habecker, 2003 Vt. 18, at  14 (fact that
  mother was primary care giver outweighed by father's superior ability to,
  inter alia, place children's needs ahead of his own, to foster
  communication with mother, and to encourage a positive relationship between
  her and children). 
        
       ¶  21.  Lastly, mother argues that the court wrongly concluded that
  the remaining relevant factors favored father, not her.  See 15 V.S.A. §§
  665(b)(1)-(5), (7), (9).  Our review of the record, however, indicates that
  the trial court had sufficient evidence to support its findings and
  conclusions on factors (1), (2), (3), (4), and (9).  Regarding the seventh
  factor, "the relationship of the child with any other person who may
  significantly affect the child," 15 V.S.A. § 665(b)(7), mother argues that
  the court failed to consider the impact a change of custody would have on
  the children's relationship with their maternal grandparents, their
  stepfather, whom they called "Daddy," and their half-brother.  The court
  acknowledged these relationships, but noted that it could not ascertain the
  nature of the relationships due to mother's failure to provide relevant
  evidence.  The parent-coordinator was never allowed to meet the stepfather,
  nor did he testify.  Although mother's father testified, mother elicited no
  evidence regarding her parent's interactions with the children.  Given
  mother's failure to proffer relevant evidence on this factor, we find no
  error.  See Poulin v. Upham, 149 Vt. 24, 26 n.*, 538 A.2d 181, 182 n.*
  (1987) (although court must consider each 15 V.S.A. § 665(b) factor, "if no
  evidence is presented as to a particular factor, no findings need be made
  with respect to it").  Moreover, we note that the court's findings as a
  whole indicate that it took this factor into consideration in reaching its
  decision and, to some degree, accounted for the importance of these
  relationships by increasing mother's parent-child contact beyond that
  proposed by the parties.  Harris, 149 Vt. at 413-14, 546 A.2d  at 211
  (specific findings tied to each factor unnecessary; it is sufficient if the
  findings as a whole reflect that trial court took all statutory factors
  into consideration, in so far as they are relevant, in reaching its
  decision). 

       Affirmed. 


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W.  Allen, Chief Justice (Ret.),
                                       Specially Assigned