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Glenn Engel, Iii v. Holly Engel

November 30, 2012


On Appeal from Superior Court, Orange Unit, Family Division March Term, 2012 Thomas J. Devine, J.

The opinion of the court was delivered by: Dooley, J.

Engel v. Engel (2011-118)

2012 VT 101

Supreme Court

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

¶ 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 medical and 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.

ΒΆ 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, ...

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