Connelly and Connelly
| Decision Date | 17 October 2007 |
| Docket Number | 940868011; A133109. |
| Citation | 215 Or. App. 465,169 P.3d 1279 |
| Parties | In the Matter of the MARRIAGE OF Patrick S. CONNELLY, aka Patrick Shawn Connelly, Petitioner-Respondent, and Stacey K. Connelly, aka Stacey K. Hillenbrand, aka Stacey Kay Ladd, Respondent-Appellant. |
| Court | Oregon Court of Appeals |
Margaret H. Leek Leiberan, Beaverton, argued the cause for appellant. With her on the opening brief was Mason & Associates. With her on the reply brief was Jensen & Leiberan.
Jacqueline L. Koch, Portland, argued the cause for respondent. With her on the brief was Bailey Pinney & Associates, LLC.
Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.
Mother appeals the trial court's order directing that legal custody of parents' two children be changed to father. She asserts that the trial court erred in determining that father had established that (1) there had been a substantial change in a party's capacity to parent the children and (2) a change of custody was in the best interests of the children. We review de novo, ORS 19.415(3), and reverse.
On de novo review, we find the facts as follows: Parents were married in 1989. Their older son, T, was born in 1991, and their younger son, S, was born in 1993. It is undisputed that mother has been the primary parent of both children throughout their lives. In 1995, the parents were divorced, and mother was awarded legal and physical custody of both children. Father had parenting time with the children on weekends, school breaks, and parts of summer vacations.
In the summer of 2005, father moved to change custody of both children to him, alleging that mother's ability to parent the children had deteriorated significantly. Father alleged that the children were unsupervised in their mother's care, that they were violent and disruptive, that they were doing poorly in school, and that mother was in violation of the parenting plan. Mother, in turn, responded that she should remain the custodial parent; mother also filed a countermotion seeking to hold father in contempt for failing to pay child support and for violating the provisions of the parenting plan.
The trial court ordered a custody evaluation, which was conducted by Billie Bell, a licensed clinical social worker. Bell, in turn, requested that mother, father, and the older child, T, undergo psychological evaluations. Bell also interviewed the parents and children and received information from collateral sources. Bell then produced a written custody evaluation. The picture that emerged, as set forth in those reports and evaluations, as well as in the testimony and exhibits at trial, is as follows.
Parents have an extremely contentious relationship and have for years engaged in prolonged and unpleasant disagreements about parenting time, child support, and child rearing. Father's communications with mother can be characterized as rude, domineering and occasionally obscene. Similarly, mother's communications and actions, as they pertain to father, can be regarded as obstructionist and inflexible. Those disagreements have had negative effects on the children-in particular, the children have been exposed to derogatory statements about mother when they are in father's household. Both children express a strong preference to remain in mother's custody.
Mother, who lives in Sherwood, is single, and has a job as an administrative assistant. Her employment is sufficiently flexible that, at the time of the hearing, she had adjusted her work schedule so that she could be at home with the children after school. Mother prepares and eats dinner with the children in the evening and supervises S's completion of homework. In mother's home, the children each have their own bedroom, and T has use of the garage to pursue his hobby of drumming.
Father lives in Beaver, near the Oregon coast, approximately a two-hour drive from mother's home. Father is self-employed and also has the ability and the willingness to adjust his schedule in order to supervise the children. Father resides, with his long-time partner and their preschool-aged child, in a double-wide trailer that has two bedrooms and is located on a large piece of property. Both parents have limited financial resources; although mother has health insurance for the children, it appears that some of the mental health services needed by at least one of the children, described in more detail below, may not be fully covered by that insurance.
Until T entered adolescence, the children appear to have had few, if any, significant behavioral issues. Sometime around 2004, mother found T unclothed in a room with his girlfriend, who was clothed. During the 2004-05 school year, mother received a report from T's school that he had deliberately made cuts on his arm; mother believed that her own therapist, whom she had arranged for T to see on a number of occasions, was addressing that issue with T. Meanwhile, although T had historically been a strong student, his grades dropped somewhat — from As to Bs.
In the summer of 2005, while T was residing with father during father's parenting time, T began to cut his arms again and also to burn himself on the arms. At various times, father caught T killing insects, constructing an animal graveyard, and building a bomb from fireworks. Also in the summer of 2005, while T was residing with father, father caught T smoking marijuana.
After mother found out about the marijuana incident-not from father but, instead, from the parent of another of the children involved — she investigated T's friends and their families and ultimately provided the police with information she had discovered about their use of drugs. Mother also discovered an empty aerosol can in her garage that she suspected — correctly as it turned out, as T ultimately admitted that he had passed out from "huffing" — might have been used by T to get high.
In response, mother arranged for T to be evaluated by her therapist, whom she believed to be qualified to conduct a drug and alcohol evaluation, and also scheduled T to see a psychiatric nurse practitioner. The nurse practitioner prescribed antidepressants for T in the fall of 2005 and began providing counseling to him, after which both parents reported that he seemed to be somewhat improved. Mother forbade T from seeing the friends who had been involved in using drugs, and also began doing random urine tests on T up through the date of the hearing, all of which showed negative results.
During the 2005-06 school year, after the change of custody petition had been filed but before the hearing in this case, problems with the children continued. Mother discovered that T had displayed suggestive materials on his My Space Internet site, and S began to engage in troubling behavior. Mother testified that S had been in trouble at school for writing on his arm that one of his teachers "sucks."1 Father testified that S had been in trouble for stealing and fighting, but that his behavior had improved in the months before the hearing.
Father also discovered that S had written a "Dear Santa" letter that contained obscenities. When mother first learned of the "Dear Santa" letter, several weeks before the change-of-custody hearing, she arranged for S to see a counselor.2
Parents continued to have disagreements about parenting and parenting time up through the time of the hearing, as evidenced by, for example, an e-mail exchange in which mother asked father to see that S completed his homework during his weekend visit with father, and father's e-mail response: During that time, T became more and more reluctant to go to father's house for scheduled parenting time.
In late 2005, at Bell's request, both parents underwent psychological evaluations. Although the psychological reports went into detail about each parent's strengths and weaknesses, they did not indicate that either parent had major psychological issues that would call into question either's ability to parent.
Shortly thereafter, Dr. Lorah Sebastian performed a psychological evaluation of T. That evaluation revealed that T had been cutting himself in the previous year because the pain took his mind off other things. T had also burned his arms in the fall of 2005. He acknowledged to Sebastian that he had set fires and made bombs when he was younger, and that, several years earlier, he and a friend had stuck a pencil into a cat's anus — conduct he described as "amusing."
Sebastian found that T was bright and articulate, but that he had low self-esteem and, without treatment, his antisocial and self-abusive behaviors could escalate. She diagnosed T with cannabis dependence in early partial remission, as well as an adjustment disorder with mixed emotional features including anxiety and depression.
Sebastian, as well as Bell, strongly recommended that T receive individual counseling with a specific counselor and, preferably, that he participate in an adolescent dialectical behavioral therapy (DBT) program, designed to address the type of behaviors he had exhibited. Sebastian testified:
The DBT program recommended by Sebastian is available only in Portland. The counselor whom Sebastian and Bell recommended was not covered by mother...
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