Engel v. Engel

• Decision Date: 30 November 2012
• Docket Number: No. 11–118.,11–118.
• Citation: 2012 VT 101,71 A.3d 1124
• Parties: Glenn ENGEL, III v. Holly ENGEL.
• Court: Vermont Supreme Court

71 A.3d 1124

2012 VT 101

Glenn ENGEL, III

v.Holly ENGEL.

No. 11–118.

Supreme Court of Vermont.

Nov. 30, 2012.

Maureen A. Martin, Hartland, for Plaintiff–Appellee.

Charles S. Martin of Charles S. Martin & Associates, PC, Barre, for Defendant–Appellant.

Tavian M. Mayer of Mayer & Mayer, South Royalton, for the Children.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

DOOLEY, J.

¶ 1. Mother appeals from a final divorce order granting father parental rights and responsibilities for the parties' two children and giving mother parent-child contact in stages beginning with supervised contact with progression through the stages determined by the children's medicaland mental health providers. Mother argues that the order impermissibly delegates the court's statutory responsibility to determine parent-child contact and parental rights and responsibilities, that the court effectively terminated her parental rights without a finding of parental unfitness supported by clear and convincing evidence, and that the court's findings are inadequate to support the contact provisions. We agree that the order improperly delegates authority over parent-child contact to third parties, and reverse and remand.

¶ 2. The underlying facts are largely uncontested. The parties were married for ten years and have two children together. The parties' marriage suffered from various problems, including mounting financial pressures, significant consumer debt, clutter in the home that “reached alarming levels,” verbal conflict, and at least one incident of physical abuse. At one point during the marriage, mother accused father of sexually abusing the children, and scheduled an appointment with the boys' pediatrician, who found no reason to conclude that they were being sexually abused. After an incident in February 2008 in which mother absconded from the home with the children for six days without contact, father filed a complaint for divorce.

¶ 3. Following the parties' separation, the family court issued a temporary order granting the parties' stipulation for the maternal grandparents to take temporary legal and physical rights and responsibilities for the children, subject to supervised parental contact. Because the children had a history of displaying “defiant and challenging behaviors,” the court instructed the grandparents to choose therapists for them. The trial court also directed the parents to seek individual therapy and parent education.

¶ 4. During mother's visitation with the children, her behavior was often inappropriate. After “a number of tense interchanges” between mother and the grandparents, the grandparents sent a letter to mother's counsel on May 8, 2008 stating that mother was no longer welcome to visit the boys in their home. Subsequently, mother began having supervised visits with the children at a nonprofit family center. Over time, however, the family center staff developed similar concerns about mother's behaviors, including mother's interrogation of the boys about their father and their prescription medications despite the children's clear discomfort. In addition, mother engaged the center's staff in long conversations about her private matters and requested to use the center as a location for retrieving property from the marital home. Mother also made numerous lengthy telephone calls to the family center director and even arrived at the home of the center's director unannounced to discuss her issues.

¶ 5. Throughout the summer of 2008, the children's therapist and pediatrician maintained communication with each other. They discussed the boys' progress, and determined it would be helpful to form a “treatment team” to better coordinate services for the boys and their family. The treatment team comprised the children's therapist, pediatrician, and guardian ad litem.

¶ 6. In September 2008, upon father's motion, the court issued a temporary order awarding father legal and physical rights and responsibilities and continuing mother's supervised contact with the children at the family center twice a week. The court also ordered that changes in the visitation arrangements could be implemented by recommendation of the treatment team. In late September 2008, due to mother's inability to follow the rules, the center suspended mother's access to visitation at that site. As a consequence, mother did not have visits for three months.

¶ 7. After agreeing to various terms relating to boundary issues, mother was able to briefly resume her visitation at the center. In January 2009, however, mother questioned one of the boys in a manner that clearly bothered the child. She continued to ask what medications the child was taking. The boy kept saying, “No, I don't want to talk about that.” Mother also asked the child to show her a rash on his penis, and the child became upset and embarrassed. The trial court found that mother was using the visits to “interrogate the boys in a search for evidence.” Following these incidents, the director of the family center notified the parties on January 16, 2009 that the center could no longer provide therapeutic supervision to repair the relationship between the children and their mother. The children's guardian ad litem sent a letter soon thereafter with information about three other service providers that might be able to assist the family. Subsequently, the treatment team exercised its authority pursuant to the amended temporary order and suspended mother's visitation until an appropriate provider of “therapeutic supervised visitation” could be found.

¶ 8. The parties had trouble finding a new visitation supervisor and “resources proved scarce.” Mother contacted the three centers suggested in the letter without any success. In January 2010, a therapist expressed interest in working with mother, and the treatment team was convened to meet with parents, their counsel, and the therapist, but mother did not attend the meeting, citing car trouble. She did not seek to have the meeting rescheduled.

¶ 9. Mother filed motions seeking parent-child contact in September 2009, June 2010, and December 2010, and the family court deferred ruling on these motions pending a final hearing and order. As of the date of the final order in February 2011, mother had not had any in-person contact with the boys since January 2009, although she had spoken with the boys over the phone and played computer games with them.

¶ 10. In the interim, the boys progressed successfully in therapy. They showed reduced signs of agitation, and were taken off medication. Accordingly, their therapist “fully supports father maintaining primary care of the children,” though he is also “adamant the boys need to see their mother.” The boys' pediatrician also noticed improvement in their physical and emotional health, and echoed the therapist's belief that a treatment team was still needed and that resumed visitation with mother would require “thoughtful oversight.”

¶ 11. After an extended trial from 2009 to 2010, in which numerous individuals testified—including mother, father, the boys' pediatrician and therapist, the family center director, and the boys' maternal grandparents—the court granted the parties a divorce and awarded father sole legal and physical rights and responsibilities. The court provided mother with contact in three phases. Initially, she was granted short supervised visits, eventually increasing to longer, unsupervised overnight contact.¹ The court explained that the visit supervisor could suspend a visit “[i]f the children become anxious or upset.” The court also designated that “[t]he determination to advance from one phase to another will be made by the children's pediatrician ... and therapist ... consistent with the physical, emotional and psychological health of the children.”

¶ 12. On appeal, mother argues that the court lacked authority to delegate responsibility for determining her parent-child contact to the children's treatment providers.² Father responds that the court did not improperly delegate its authority because it retained the power to override the team's recommendations. The children through their lawyer join father's brief and request that the family court's decision be affirmed.

¶ 13. The issue of whether the court's order here impermissibly delegated its authority to determine custody matters to the treatment team is a legal question that we review de novo. Mitchinson v. Mitchinson, 173 Vt. 483, 484, 788 A.2d 23, 24 (2001) (mem.). In a custody dispute, it is the court's responsibility to decide which parent will assume legal and physical parental rights, and to set forth parent-child contact for the noncustodial parent. 15 V.S.A. § 665(a) (entrusting court with authority to “make an order concerning parental rights and responsibilities” of minor children); id. § 664(1) (defining parental rights and responsibilities to include “parent child contact”). The court's determination is guided by the best interests of the children. Id. § 665(b) (setting forth factors to be considered). The public policy expressed by the Legislature is that “it is in the best interests of their minor child to have the opportunity for maximum continuing physical and emotional contact with both parents, unless direct physical harm or significant emotional harm to the child ... is likely to result from such contact.” Id. § 650. In keeping with this policy, we have held that a parent has a right to contact with her children, unless the court finds by clear and convincing evidence that visitation would be detrimental to the child. DeSantis v. Pegues, 2011 VT 114, ¶ 35, 190 Vt. 457, 35 A.3d 152. In this case, there is no finding, and none can be made on this record, that total denial of contact with mother is warranted and in the children's best interest. ³

¶ 14. The court was thus bound to fulfill its statutory role by crafting a contact schedule and could not delegate this task to another agency...