Rachel L. Mirochnick v. Mario Spinelli (2011)

MEMORANDUM OF DECISION

These are three overlapping actions involving custody of two half-sisters.

In the 1997 action (the “Mirochnick case”), this court dissolved the marriage of the parties on February 5, 1998, and awarded Rachel Mirochnick custody of their daughter Katherine, born August 3, 1996.   The 2002 action (“the Spinelli case”) is a custody action between Rachel Mirochnick and Mario Spinelli, unwed parents of Rebecca Spinelli, born January 31, 2001, and it concluded on September 23, 2002, with an award of custody of that child to Rachel.   In neither case has that original custodial award been modified.

On September 13, 2010, Mr. Spinelli filed motions in his case seeking to have Rachel Mirochnick held in contempt of court orders allowing him visitation with Rebecca, and to modify the 2002 judgment so as to transfer primary custody of the child to him.   On November 10, 2010, Margaret Becotte and Marcel Becotte, apparent maternal grandparents of Rebecca, moved for leave to intervene and for custody of (or, alternatively, visitation with) the child.   Simultaneously, they initiated the 2010 action (“the Becotte case”) alleging that they are the maternal grandparents of Katherine and likewise demanding either custody of or visitation with this child.

Prior to the hearing held before this court on December 10, 2010, guardians ad litem Dana Simoni and Kellie Babbitt were appointed on behalf of Katherine and Rebecca, respectively.   Each has filed a motion for an award of fees for service.

I. Preliminary Issues

A. Service of Process in Becotte Case

The Becotte case contains the only pleading addressed to the questions of custody of and access with Katherine.   Upon its filing, the court issued an order for hearing and notice with respect to her father, Joshua Mirochnick, upon a representation that he is a resident of the state of Illinois.   The order directed that he be served personally in that state.   The marshal's return dated November 12 indicates, instead, that the marshal to whom service was delegated mailed copies of the process to him by certified mail, return receipt requested.   There is no marshal's return indicating that he received this mailing, nor that the Becottes complied with the order requiring personal service upon him.

While service of process is designed to provide notice to a party of judicial proceedings which may implicate that person's rights, mere awareness of proceedings is not sufficient to confer personal jurisdiction over a person when the mandates for service of process have been ignored.  “ ‘[T]he Superior Court ․ may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction.’   (Internal quotation marks omitted.)  Kim v. Magnotta, 249 Conn. 94, 101-02 (1999).  ‘[W]hen a particular method of serving process is set forth by statute, that method must be followed ․ Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction.’  (Citations omitted;  internal quotation marks omitted.)   Commissioner of Transportation v. Kahn, 262 Conn. 257, 272 ․ (2003);” Jimenez v. DeRosa, 109 Conn.App. 332 (2008).

In this matter, the court finds based upon testimony of Rachel Mirochnick and representations by Ms. Simoni, an officer of the court, that Mr. Mirochnick has received actual notice of his daughter's circumstances and the current proceedings.   He is suffering from cancer and thus unable to attend the hearing at such a distance from his care providers, let alone to take an active role in raising her.   Accordingly, and in light of the child's circumstances as set forth below, this court deems his absence to be an effective waiver of his right to service of process at this post-judgment moment.   However, the Becottes must forthwith either produce proof of service of process of their application, or have served upon him personally a true and certified copy of that application and this memorandum of decision;  in the latter event, if he moves for a new hearing within twenty days of such service, this court will allow him a hearing de novo upon such portions of the orders laid out below which pertain to Katherine.

B. Standing of Becottes to Intervene

With respect to both children, the Becottes also must satisfy this court that it has subject matter jurisdiction over their demands for custody or visitation.

Since 2002 when our supreme court issued its decisions in the cases of Roth v. Weston, 259 Conn. 202 and Crockett v. Pastore, 259 Conn. 240, it is clear that a nonparent wishing to visit a child must do more than show that such visits would be in the child's best interests.   Specifically, to obtain standing to argue how those interests would be affected by visitation, the grandparent must allege and prove (by clear and convincing evidence) that “ ․ the petitioner has a relationship with the child that is similar in nature to a parent-child relationship ․ [and] ․ that denial of the visitation will cause real and significant harm to the child.”  259 Conn. 202, 234-5.   Subsequent cases, including Denardo v. Bergamo, 272 Conn. 500 (2005), Clements v. Jones, 71 Conn.App. 688 (2002), and Fennelly v. Norton, 103 Conn.App. 125 (2007), have all reiterated that two-part test.   Arguably, under Fish v. Fish, 285 Conn. 24 (2008), a lower threshold applies if the case is viewed as one seeking custody.

Here, the Becottes meet the standing requirement under either line of case authority.   The court finds that Margaret Becotte is the mother of Rachel Mirochnick and is the biological grandmother of both girls.   Marcel Bedotte, her husband, is a step-grandparent as he is not Rachel's father.   However, he has been married to the grandmother since before the birth of Katherine and has had a relationship with both children throughout their lives.   On various occasions, the children have lived with the Becottes, most recently commencing in November when they became homeless;  on prior occasions, the children had been placed with them by the Department of Children and Families (DCF) and by their parents on a voluntary basis.   Additionally, Rachel Mirochnick, Joshua Mirochnick, and Mario Spinelli have all gone through extended periods of being unable to care for the girls, resulting in DCF referrals, homelessness, and discernible unacceptable impact upon them as further described below.   Notwithstanding Rachel and Mario's present contention that each is ready, willing, and able to care for the girls, it is obvious that without the safe haven afforded by the Becottes, real and significant harm beyond what they have already endured would likely afflict these children.

II. Findings

In many respects, it is no exaggeration to say that the pattern evident in the lives of these children resembles that routinely found in juvenile court proceedings.

Ms. Mirochnick has always tried to be a good parent, but is held back by her mental illness (recently diagnosed as chronic depression, earlier as bipolar disorder);  by her poverty;  and by her relationship instability.   She has lost her apartment twice within the past two years, resulting in the girls living with her in a trailer in a commercial parking lot.   The children have been in four different school systems in the past two years.   She married Alan Pierce in October of 2008, and he has taken an active role in raising these children.   He lost his job shortly after the marriage and was out of work for eighteen months.   His parenting style is authoritarian, and Ms. Mirochnick defers to his judgment.   By his own testimony he has experienced “problems with anger” and has undertaken counseling to deal with this and other issues.

Katherine has had chronic problems with self-inflicted cutting and burning, suicidal ideations, and truancy.   These are classic symptoms of the early adolescent often referred to the juvenile court as a child from a family with service needs.¹  Four years older than Rebecca, she is very protective of her younger sister.   Both girls, in turn, are protective of their mother-to a degree which this court would view as their being “parentified,” that is, engaged in “․ a form of role reversal, in which a child of a personality-disordered parent is inappropriately given the role of meeting the emotional or physical needs of the parent or of the other children.” ²

Although Mr. Spinelli offered himself as a custodial resource for Rebecca, the court finds that his history with his daughter precludes that option for the moment.   Since his separation from Rebecca's mother, he has become gravely ill with a heart condition that has led to his having endured open heart surgery and qualified him for permanent disability status at an early age.   This health catastrophe kept him distant from her for a lengthy period of time.   He has two older daughters (Rebecca's paternal half-sisters) with whom she has a good relationship.   As to her father, however, Rebecca has manifested anger at him both due to his separation from her mother, and to his separation from her, and has expressed a present antipathy toward living with him.   Since her placement with him would also entail her present separation from Katherine, the court does not conclude that such an outcome is in her present best interest.   Apparently, both father and daughter are in counseling to address their estrangement, and another look at this option may be appropriate if the counseling or other event causes an improvement in the relationship.

Mr. Mirochnick has not offered himself as a resource for Katherine.

The maternal grandparents, the Becottes, are an apparently stable couple with no disclosed impairments.   They have a decent home in a community which would allow both girls to remain in their present school settings.   They have provided a safe haven for the girls in years past.   There is a clear mutual distrust between them and Mr. Pierce;  the court is concerned with the report of both guardians ad litem that their wards do not prefer placement with the Becottes, but perceives that the resistance flows from allegiance with their mother's priorities (where his needs and desires have high billing), and thus is an aspect of the parentification described above.   While Ms. Mirochnick is critical of them, the court does not find that their behavior towards her is unreasonable or deserving of her condemnation.

As bleak as the girls' circumstances are, some ray of hope may be found in the fact that none of the principals here seem affirmatively motivated to harm the children.   Also, and in response to a referral to the Department of Children and Families, both Ms. Mirochnick and Mr. Spinelli have been voluntarily participating in counseling aimed at addressing their individual deficiencies as custodians.   These observations lead back to the court's initial note as to how this case is so similar to the daily fare of the juvenile court, a comparison that was not idly made.   This family is one in need of intense assistance in coming to terms with the many challenges it faces, and here in the family court, ironically, the resources required to meet those needs are unavailable.   In the juvenile court, if an adjudication of neglect or of this being a family with service needs were made, the assistance of social workers, psychologists, or even psychiatrists would then be within reach and could be brought to bear upon this family's problems.   This court, on the other hand, must make do with what insurance contracts or Good Samaritans provide.   This disproportion in therapeutic potential explains those provisions in the court's orders encouraging the guardians ad litem to file petitions in that forum if they discern that doing so would be in the interest of their respective wards and would be justified by law.

III. Orders

In light of the foregoing, it is hereby ORDERED:

1) The motion of the Becottes for leave to intervene in the Spinelli case is granted.

2) Temporary custody of Katherine Mirochnick and Rebecca Spinelli is awarded to Margaret and Marcel Becotte, on the condition that they continue the present school setting for each child (Norwich Technical School for Katherine, and Wequonnoc Elementary School for Rebecca).

3) Rachel Mirochnick is awarded reasonable rights of visitation with both children, to be exercised in increments not longer than four hours on two days per week, one of which shall be Christmas Day, or Christmas Eve, at her election.

4) Mario Spinelli is awarded reasonable rights of visitation with Rebecca, to be exercised in increments not longer than six hours once per week, one of which shall be Christmas Day or Christmas Eve, whichever date Ms. Mirochnick does not elect.

5) His motion for contempt is denied.

6) The issue of visitation between Joshua Mirochnick and Katherine is deferred to the future, as the court was not at this time given any information upon which to determine what is feasible and in this child's best interests.

7) Both guardians ad litem are awarded fees at an hourly rate of $150.   Kellie Babbitt is awarded the sum of $3,000 and Dana Simoni the sum of $1,800 for services rendered as of December 10, and each may submit motions for supplemental fees as these cases progress.   Rachel Mirochnick shall pay $25 weekly to Attorney Simoni by Saturday of each week commencing January 1. Mario Spinelli shall pay $25 weekly to Kellie Babbitt by Saturday of each week commencing January 1.

8) The child support which Mr. Spinelli has been paying to Ms. Mirochnick shall be instead paid to the Becottes as long as the children reside with them.

9) Rachel Mirochnick and Mario Spinelli are ordered to continue cooperation with the directives of the DCF, including, but not limited to, participating in such counseling as DCF makes available to this family to deal with its multiple problems.

10) In the event that the circumstances of either child do not show significant improvement in light of these present orders, then Ms. Simoni and Ms. Babbitt, as the guardians ad litem for the girls, are encouraged without further approval from this court to exercise their statutory authority to file either a petition for neglect, or a complaint setting forth facts showing that the child is from a family with service needs, in the juvenile court, as such circumstances warrant.

11) These orders are intended to be temporary and to provide a haven for the children while the efforts of DCF to stabilize the parents are underway.

The court will continue all pending motions to February 10, 2011, at 2:00 p.m. for an update on the situation of the children and modification of these orders as may be required.

Boland, J.

FOOTNOTES

FN1. General Statutes Section 46b-120(7) defines a “family with service needs” as “․ a family that includes a child or a youth under seventeen years of age who (A) has without just cause run away from the parental home or other properly authorized and lawful place of abode, (B) is beyond the control of the child's or youth's parent, parents, guardian or other custodian, (C) has engaged in indecent or immoral conduct, (D) is a truant or habitual truant or who, while in school, has been continuously and overtly defiant of school rules and regulations, or (E) is thirteen years of age or older and has engaged in sexual intercourse with another person and such other person is thirteen years of age or older and not more than two years older or younger than such child or youth.”.  FN1. General Statutes Section 46b-120(7) defines a “family with service needs” as “․ a family that includes a child or a youth under seventeen years of age who (A) has without just cause run away from the parental home or other properly authorized and lawful place of abode, (B) is beyond the control of the child's or youth's parent, parents, guardian or other custodian, (C) has engaged in indecent or immoral conduct, (D) is a truant or habitual truant or who, while in school, has been continuously and overtly defiant of school rules and regulations, or (E) is thirteen years of age or older and has engaged in sexual intercourse with another person and such other person is thirteen years of age or older and not more than two years older or younger than such child or youth.”

FN2. A useful definition found online at Outofthefog.net..  FN2. A useful definition found online at Outofthefog.net.

Boland, John D., J.