Clark v. Bellavance

• Decision Date: 09 December 2016
• Docket Number: No. 2016-135,2016-135
• Court: Vermont Supreme Court
• Parties: Kerry Clark v. Kyle Bellavance

2016 VT 124

Kerry Clark v. Kyle Bellavance

No. 2016-135

Supreme Court of Vermont

October Term, 2016

December 9, 2016

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Washington Unit, Family Division

Kevin W. Griffin, J.

Barbara R. Blackman of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Plaintiff-Appellant.

Allison A. Ericson of Law Offices of Sedon & Ericson, P.C., Chelsea, for Defendant-Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. EATON, J. Mother appeals from a family court order modifying parental rights and granting father sole legal and physical rights and responsibilities for their daughter. Mother argues that the family court's decision modifying parental rights was based on erroneous facts and improper consideration of the child's bests interests and resulted from bias against her by the court. We affirm.

¶ 2. Mother and father are the parents of a daughter, who was born in 2009. Mother and father were never married and their relationship ended before daughter was born; daughter lived exclusively with mother for the first twenty-one months of her life. In April 2011, the parties entered into a parenting agreement, accepted by the court as an order, that gave mother sole legal and physical rights and responsibilities for daughter, subject to father's parent-child contact. The court found that when the parties entered into the original parenting agreement, they "were committed to a healthy, respectful and supportive co-parenting relationship where the parties agreed to make good faith efforts to foster a positive relationship between [daughter] and each parent and to the extended family," and although mother and father had "markedly different views" of the stability of their co-parenting arrangement, neither party sought modification until 2015.

¶ 3. On January 26, 2015, mother called the Department for Children and Families (DCF) to report that daughter had allegedly disclosed that father sexually abused her. According to mother, daughter told her that father had hurt her and "touched her privates and butt a lot." Mother took daughter to the emergency room, where she was examined by physician Dr. Matthew Greenberg. Dr. Greenberg noted that "[daughter] appear[ed] pain free, eating and smiling," and although mother asked daughter to tell hospital personnel about the alleged abuse, daughter made no disclosures. Given the severity of the allegations, Dr. Greenberg recommended that mother take daughter to the University of Vermont Medical Center (UVMMC) for a pediatric sexual assault (SANE) evaluation, which she did. Daughter did not disclose any abuse and the results of the exam revealed "[n]o obvious signs of acute or chronic trauma." An evaluation with Dr. Karen Patno, a child sexual abuse specialist, was scheduled to take place on February 18, 2015. Mother did not tell father about the alleged disclosures or examinations until she met with him on January 28. Within a week, DCF opened an investigation based on mother's report, and an investigator conducted a forensic interview with daughter on February 3. DCF did not substantiate any abuse by father and the agency took no further action. On February 18, mother took daughter to Dr. Patno who, without consulting the doctors at UVMMC, the DCF investigators or father, conducted an "unremarkable" physical exam and an unrecorded interview with daughter; Dr. Patno told mother that during the interview daughter disclosed abuse.

¶ 4. In the meantime, mother had demanded that father voluntarily suspend his parent-child contact with daughter and when he refused, she unilaterally withheld father's parent-child contact on January 28, 2015, and filed an emergency motion to modify parent-child contact. The court did not immediately rule on the motion and ordered that the existing 2011 parenting orderremain in place. Nevertheless, over the course of the next ten days, mother filed for emergency ex parte relief on behalf of daughter and withheld father's parent-child again on February 4. In response, father retained counsel, filed for temporary emergency relief, and requested a forensic mental health evaluation. The court rejected father's request for emergency relief but warned mother that "Father's parent-child contact shall remain in place unless or until this court modifies the order in place." Despite the court orders, between January 25 and February 18, mother unilaterally withheld father's parent-child contact rights on four separate occasions, and on February 19, 2015, the court granted father's motion for temporary emergency relief, awarding father sole legal and physical rights for daughter and suspending mother's parent-child contact.

¶ 5. On February 23, 2015, the court held a hearing and received testimony from Dr. Greenberg and Dr. Patno. The court found that Dr. Patno's testimony was not credible and found that "to date there was no credible evidence that Father had sexually abused [daughter]." After impressing upon mother the importance of obeying court orders, the court permitted limited supervised parent-child contact between mother and daughter and the parties agreed to submit to a family forensic evaluation with Dr. William Halikias that would involve detailed interviews with various members of mother's and father's families. On April 6, 2015, the court issued an amended order on a temporary basis regarding parental rights and responsibilities. Under the amended order, father retained sole legal and physical rights and responsibilities but mother was awarded unsupervised parent-child contact two days a week, plus every other weekend.

¶ 6. On October 5 and 7, 2015, the court held evidentiary hearings and took testimony from the parties, experts, and fact witnesses. Based on that testimony and the testimony adduced at the February 23, 2015, hearing, the court made a sequence of findings that resulted in father permanently acquiring legal and physical rights for daughter. Those findings and the court's conclusion are the subject of this appeal.

¶ 7. First, the court found that "Mother [had] embarked on a mission that would have destroyed Father's relationship with [daughter] had it succeeded," and that mother's behavior hadcaused "a total breakdown in the parenting plan." The court specifically noted a portion of the Halikias report, which was admitted by stipulation of the parties: "Mother had difficulty organizing and deploying rational thoughts" and "Mother's fixated belief that Father has sexually abused [daughter] makes it unlikely that Mother can exercise sound judgment or perceptual skills while interacting with [daughter]." The court concluded that, although mother had "shown significant improvement," she nevertheless "still firmly believe[d] that Father molested [daughter]" and her "belief that [daughter] was molested by Father has not abated." The court further found that "Mother is accepting of the fact that 'charges aren't going anywhere' so 'she has to cope,' " but found mother's testimony about her daughter's alleged disclosure not credible. Additionally, the court found that "Mother is invested in the belief that [daughter] has been sexually abused and traumatized by Father, so she needs [daughter] to be ill to support her feelings and beliefs about Father." The court noted Dr. Halikias's concern "that [daughter] 'stands at extraordinary risk for future social and mental health problems, particularly depression and anxiety, or maladaptive personality traits.' " According to the court, "the most insightful but disturbing part of Mother's testimony was when she acknowledged that she now 'understands the game . . . and the dance,' " and "the court s[aw] little progress on Mother's part since the completion of the Halikias assessment in April 2015."

¶ 8. Second, the court found, based on the Halikias report, that father "supports fostering a positive relationship between [daughter] and mother." "Father has been responsive and cooperative" in coordinating daughter's counseling with daughter's therapist and with mother, although the court found that "[f]or Father, the most concerning aspect of his relationship with Mother is her failure to acknowledge or apologize for her conduct that brought about the change in custody status." Third, the court found that since father gained temporary custody of daughter, "she seems more relaxed and happy," "[s]he eats well and no longer fears the police," "[h]er level of anxiety has diminished," and she "is more confident and more open to meeting people." The court concluded that "[daughter] has lived primarily with Father for the past 14 months and hertransition to Father's home has gone surprisingly well. After an initial adjustment period where [daughter] missed seeing her Mother on a daily basis, she has relaxed and grown comfortable with Father as the primary caretaker." As a result, the court found that "[i]t would not be in [daughter]'s best interest to return her to Mother's primary care."

¶ 9. Based on those findings, the court concluded that there had been a real, substantial, and unanticipated change of circumstances since the original parenting order went into place in April 2011. Specifically, the court identified mother's ongoing belief that father is a pedophile who has molested daughter as contributing to a breakdown in the parenting plan and cited to the fact that mother violated court orders by unilaterally preventing father from exercising his parent-child contact rights. The court found that mother's behavior, changed belief system, and inability to...