Jimm Ford v. Carlene Ford (2011)

MEMORANDUM OF DECISION

The instant matter is a postjudgment action regarding the custody of the parties' twin six-year-old sons.   These parents have a very long history of conflict not only in our courts, but with various local police departments and the child protection agencies of two different states.   The immediate issue stems from an ex parte motion filed on August 3, 2010, by the plaintiff father for contempt, claiming that the defendant inappropriately filed for relief from abuse on behalf of the children in Vermont when Connecticut had jurisdiction over the children (No. 203).   That motion and others were eventually scheduled for a hearing on October 27, 2010.   The plaintiff filed his motion to modify custody on that date (No. 212).   At a hearing held on that day, the court, Prestley, J., gave temporary custody of the two boys to the plaintiff.   The defendant mother was given limited rights of access to the children, who were to be supervised at the request of the Guardian ad litem (GAL).   The case was further complicated by the fact that the defendant now resides in Vermont.   Additionally, the defendant was in a motor vehicle accident on February 27, 2009 that has left her with a traumatic brain injury.¹  The undisputed evidence is that she has been fully disabled by the Social Security Administration and is receiving benefits through the Supplemental Security Income program, commonly referred to as SSI.

Over the short life of these two children, there have been several changes of the custody arrangements.   Each parent has had primary residence at times and the plaintiff has had sole legal and physical custody for a period with the defendant having supervised access.   The court recognizes the difficulty inherent in raising twins, especially given the fact that at least one of the boys is a special needs child.   In addition to the demands of being a single-parent household, both parents have faced financial difficulties due to unemployment over the last six years.   Toward the end of 2008, these pressures became too much for the plaintiff and he asked for the children to be placed with the defendant.   That was done and both parents were to remain in counseling.   There was a joint legal custody order with an access schedule.   Primary residence of the children was with the defendant.   In June 2009, the defendant requested and was granted permission to relocate with the children to the Ludlow, Vermont area based on a stipulation by the parties.

During the summer of 2010, the defendant alleged that the plaintiff engaged in inappropriate sexual contact with one of the boys.   That triggered a comprehensive investigation both by the Vermont department for children and families (VTDCF) and the Enfield, Connecticut police department.   That investigation included a physical examination of the child.   On August 19, 2010, there were forensic interviews of both boys in Vermont, which were observed by a representative of the Enfield police department and recorded.   The allegations were not substantiated by VTDCF.

In Connecticut, the case was presented to Senior Assistant State's Attorney (ASA) Debra Collins for review as is the practice with such matters.   ASA Collins issued a report to the Enfield police department that she could not find that probable cause existed on which to base criminal charges against the plaintiff.   She cited, among other factors, the apparent involvement of the defendant in the child's “disclosure” as well as the defendant's history of making false accusations against the plaintiff to other police departments and the Connecticut department of children and families (DCF).

As a result of the defendant's allegations, VTDCF initiated an investigation of the defendant in October 2010.   There was a belief that she might be suffering from Factitious Disorder by Proxy, formerly known as Munchausen Syndrome.   The court, Prestley, J., granted temporary sole custody of the boys to the plaintiff on October 27, 2010, as was previously described.   That case was closed on December 29, 2010, apparently due to the fact that the children were no longer in her care and her contact with the children was supervised.   Despite the closing of the case, the VTDCF “strongly encouraged [the defendant] to follow through with ․ recommendations.”   Those recommendations were spelled out in a letter to the defendant notifying her of the agency decision.   They were:

Recommend Service:  Psychological evaluation for Carlene with the specific objective of exploring her motivation for seeking medical attention for her sons before and after visits with their father (which have not revealed any serious concerns) and to recommend treatment to help her stop this behavior.   This is also an important step for finally fulfilling the Connecticut Court Order requiring Carlene to be in therapy as a condition of being allowed to move [the children] to Vermont.  (Plaintiff's Exhibit 1.)

The question of a psychological evaluation is a troubling aspect of this case.   A review of the court file reveals that the parties were ordered to undergo psychological evaluations by a Waterbury, CT psychologist, Sidney Horowitz, as early as November 2007.   The file also shows that the defendant was not initially compliant with that order.   There is some reference to the evaluation being completed at some point prior to 2010, but it was never a part of any court hearing, nor was it introduced as evidence at any hearing.   The court ordered the evaluation again as part of its October 27, 2010 hearing.   The court had relied on the plaintiff's testimony that he could arrange to pay for that evaluation—or at least a good part of it.   By the time the parties came to court for their January 4, 2011 hearing, that evaluation had not been completed or even started.   The order for the plaintiff to pay the retainer to Horowitz was reissued again based on statements from the plaintiff that he could arrange for the fees to be paid.   A compliance date was set for January 25 to be sure that the process was started.   The plaintiff reported to Family Case Flow Coordinator Hayes on January 24, 2011, that he had paid 40 percent of the fee and that he had to skip a mortgage payment in order to accomplish that;  that his anticipated loan from a friend did not come through.   A new compliance date of March 1, 2011, was set.

On March 1, 2011, the plaintiff appeared but the defendant did not.   At that hearing it was made clear that no money had been paid to Dr. Horowitz despite the earlier assurances to that effect.   The plaintiff testified that he had no funds to pay a $7,500 evaluation fee and no immediate likelihood of raising such a sum.   He was unemployed and making plans to sell his home.   The GAL reported that she had received a copy of the VTDCF letter sent to the defendant closing its investigation and recommending her to undergo an evaluation.   The GAL also reported that the letter contained appropriate contact information for agencies at which she could receive such services.   Based on that representation and the lack of finances available to the plaintiff, the orders regarding Dr. Horowitz were vacated and the defendant was ordered to make a copy of her Vermont evaluation available to the court.

The next court date in this matter was July 5, 2011.   The defendant reported that she had not had an evaluation.   She claimed that the evaluation was only a recommendation by VTDCF and not a requirement.   Additionally, she claimed that there was no availability in the near future for the service;  there was a wait list that ran some eight months to a year.   She did claim that she had some sort of evaluation, which was presented to the court, but it was merely an assessment by a substance abuse counselor as to whether or not the defendant should change therapists.   It was of no use to the court.   The court decided to proceed since the children had now been with the plaintiff for over eight months with very limited access by the defendant.

At this point in time, both parents were self-represented.   Each had some considerable experience in representing themselves in this matter and they did an admirable job.   The defendant, as discussed earlier, had requested certain accommodations be granted to her as a result of her disability.   Although she tended to find it difficult to deal with rulings that did not favor her and would then accuse the court of “yelling at her” when she would not comply with instructions to stop speaking and listen to the orders of the court, she did a more than adequate job of presenting her witnesses effectively and establishing her points with the court.

For example, she established that there had been ongoing difficulties between the parents, especially at exchanges despite the presence of third-party supervisors.   It seemed clear from the testimony that both parties had to bear the blame for those problems and given the very long history of conflict between them that is not surprising.   She also demonstrated that visiting the children when she lives in Vermont and has limited funds is very difficult.   She was most fortunate to have the assistance of friends who worked hard to assure that she had at least some quality time with her sons.   She discussed in some detail the various professional agencies that could provide services to her and the children if they were returned to her custody.   There was no information about her mental health treatment.

Unfortunately, without more professional assistance, a change in the current orders is very questionable and the safety of the children in her unsupervised care remains an important consideration.   No evidence has been presented to the court that she is addressing her history of questionable accusations against the plaintiff in any meaningful way.   Her testimony indicates that she still completely believes that she behaved in an entirely appropriate manner, not only with the most recent and damning accusations, but for as long as this family has been in conflict.   In her testimony before the court, she represented herself as special education teacher, but on cross examination admitted that she was a paraprofessional and not a certified teacher.   She continues to believe that the negative reports and comments from VTDCF are solely the product of a single social worker who did not like her despite the fact that all communication presented to the court is also signed by the worker's supervisor.   The defendant delayed her compliance with the court's order that she authorize the release of the VTDCF records to the GAL. That order had been issued during the July 5 hearing and the defendant did not sign the authorization until she was preparing to enter the continued hearing on July 29.   That loss of almost one month was, in the court's opinion, a significant factor in delaying the receipt of those records in time for the continued hearing on September 2, 2011.²

The testimony of the GAL supported continuing with the status quo, including supervised access to the children.   She reported that she had serious concerns regarding the defendant's ability to function when under stress based on information she had received from some of the defendant's own references as well as her observations of the defendant in court.   She personally observed the defendant's inappropriate behavior in the courthouse halls at the end of court hearings, one of which required the assistance of the marshals to calm her.   The court also observed the defendant's inability to deal with negative news and would question her ability to deal with two young children alone at this time.

The defendant offered the testimony of Paul Rowan, who has acted as the supervisor for all the recent time she has spent with her sons.   Rowan, who is a Meriden police officer, performed this service on a voluntary basis.   He has supervised approximately ten separate visitations since the temporary order was put in place in October 2010.   His testimony was that the defendant was completely appropriate in her parental role during all the visits.   She interacted well with the children and he found her to be a dedicated and loving mother.   He did acknowledge that the exchanges involving the two parents did not always go smoothly and he had to once physically sit in front of the defendant to stop her from approaching the plaintiff during a particularly heated exchange.   Rowan blamed the plaintiff for most of the difficulties and made a referral to DCF after one visit.   The GAL reports that the incident in which Rowan felt the necessity to physically intercede was a mutual problem.   Rowan's referral to DCF did not result in any action on the part of that agency.

Unfortunately, without any evidence about the defendant's psychological status or her therapy, the court is left with public actions of record and those actions do not suggest that extended, unsupervised access to the children is appropriate at this time.   The order accepting the agreement of the parties allowing the defendant and the children to relocate to Vermont required that the defendant, as well as the plaintiff, engage in “mental health treatment.”   She has offered no evidence to the court that she has done that, and the closing letter from the VTDCF refers to that condition in its recommendations to her.   The defendant testified to the many mental health professionals with whom she has consulted regarding her sons and there was one reference in passing to her therapist.   She has not, however, put into evidence the name of any mental health professional with whom she is treating nor has she offered any records of such treatment.

The GAL's uncontroverted testimony, on the other hand, was that the defendant has been arrested several times in recent years and convicted three times of unspecified crimes;  there was some brief testimony about a domestic violence charge involving a former boyfriend.   She also testified that since the defendant's June 2009 relocation to Vermont, there have been eleven contacts to VTDCF concerning the defendant, her children or the plaintiff.   The Connecticut DCF also has, according to the GAL, an extensive history with the defendant.   The GAL testified that at least three different DCF workers have had involvement with this family as well as at least two local police departments.

The defendant's desire to have the minor children in her care and custody is certainly understandable and the court sympathizes with her in the current situation.   Nevertheless, her focus seems to have been directed toward discrediting the plaintiff as a parent rather than working to better her own situation.   She does not appear to recognize her own shortcomings and, as a result, is making no real effort to deal with those problems.

The plaintiff testified as to the condition of the two minor children since being put into his care and custody.   Both boys are in school, with good attendance records, and making appropriate academic progress.   The boys are in good health and well integrated into their neighborhood and school.   Currently there are no out of school services necessary for either of the boys, but the school staff is aware of the special needs of one of the boys and is prepared to work with him should issues develop.

This matter comes to the court as a postjudgment modification of the custody orders in this file.  “The court has continuing jurisdiction over a custody decree ․ and the noncustodial parent retains the option to move to modify custody based on a substantial change in circumstances affecting the welfare of the children.”  Cookson v. Cookson, 201 Conn. 229, 236, 514 A.2d 323 (1986).   As indicated above, temporary custody of the two minor children was granted to the plaintiff and the purpose of the instant proceedings was to determine if his motion should be granted or not.   The case law in Connecticut is clear that custody may not be modified without the opportunity for an evidentiary hearing.  Kelly v. Kelly, 54 Conn.App. 50, 57–58, 732 A.2d 808 (1999).   At such hearing “[t]he burden is on the party seeking modification to show the existence of a substantial change in circumstances.”  (Internal quotation marks omitted.)  Jaser v. Jaser, 37 Conn.App. 194, 204, 655 A.2d 790 (1995);  Emerick v. Emerick, 28 Conn.App. 794, 802, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992);  see also Walshon v. Walshon, 42 Conn.App. 651, 681 A.2d 376 (1996) (affirming the dismissal of plaintiff's motion for modification for failure to make out a prima facie case of a material change in circumstances).   The court must also find that the change being cited took place after the present order and then that the modified order is in the best interests of the children.

Having reviewed all of the testimony and the exhibits presented and having considered carefully the arguments of the parties, the court makes the following findings:

1. The defendant's unsubstantiated allegations against the plaintiff for inappropriate sexual contact with one of the minor children exposed both minor children to unnecessary medical and forensic intervention;

2. This was a continuation of the defendant's historical allegations of poor parenting on the part of the plaintiff;

3. The defendant's actions legitimately raised concerns about her mental health and her ability to adequately and safely parent the two minor children;

4. The two minor children are in a stable and appropriate home and school environment under the care of the plaintiff;

5. The historical and present psychological status of the defendant is currently unknown, but her behavior suggests that it is not adequate for her to properly care for her minor children without assistance;

6. It is in the best interests of the minor children to remain in the custody of the plaintiff and for their contact with the defendant to be supervised;

7. The continued participation of a GAL is essential for the well being of the minor children;  and

8. Attorney Kerry Tarpey has performed diligently and honorably as the GAL for the minor children for most of their lives and has done so without proper compensation.   Her service to her wards has been outstanding.   Given the financial difficulties of both parents, there is no realistic hope that she will be appropriately compensated by them at any time in the foreseeable future.

Accordingly, having considered the evidence in this matter in light of the appropriate statutory criteria, the court HEREBY ORDERS:

1. The plaintiff's motion No. 212 is granted and he shall have sole legal and physical custody of the two minor children, to wit:  Bryce A. Ford and Parker C. Ford whose dates of birth are both July 15, 2005;

2. The defendant shall have access to parenting time with the minor children

a.  At least once per month on either a Saturday or Sunday from 12 p.m. to 6 p.m. The specific date to be arranged between the plaintiff and the defendant by the twentieth day of the prior month;

b. if the parties are not able to reach agreement as to the date of the monthly visit, said visit shall take place on the second Saturday of each month;

c. in addition, the defendant shall have parenting time on Mother's Day, on December 26, and on the Saturday immediately following July 15;

d. She may also have parenting time on any and all other dates as agreed to by the parties.   Approval of such dates shall not be unreasonably withheld;

e. all visits shall be supervised by Paul Rowan or any other individual agreeable to both parties;

f. The children are not to be taken across any border of the State of Connecticut during such visits for any reason including but not limited to day trips to out of state attractions without written approval of the plaintiff or further order of the court.

3. The parental access plan set forth above shall not be modified without the court being provided with a psychological evaluation of the defendant and evidence from appropriate mental health professionals that any such modification is appropriate and safe for the minor children;

4. The GAL may file with the court a motion for the approval of her fees to date;

5. The GAL's appointment shall be vacated and she is authorized to file a withdrawal of her appearance;  and

6. The court will appoint a new GAL at state rates.   The decision as to how that cost shall be paid will be heard at a future date upon the presentation of financial affidavits by the parties.

SO ORDERED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. The defendant, who was representing herself for most of the court proceedings made an ADA request for special assistance during the hearings.   She requested that a friend sit with her at counsel table to help her remain focused and to assist her in understanding the events due to her inability to quickly and easily process information.   That request was granted and she was so assisted until such time as she was represented by legal counsel..  FN1. The defendant, who was representing herself for most of the court proceedings made an ADA request for special assistance during the hearings.   She requested that a friend sit with her at counsel table to help her remain focused and to assist her in understanding the events due to her inability to quickly and easily process information.   That request was granted and she was so assisted until such time as she was represented by legal counsel.

FN2. As of that hearing date the records have not been received by the GAL. She reported to the court that VTDCF officials had told her that they had been mailed.   The court did not postpone the hearing and indicated that it would review the records in camera when they were received.   If the court found anything that it wanted to rely on in formulating its decision, a further hearing would be scheduled.   After the hearing was completed, the counsel for the defendant filed a motion requesting a hearing regarding the records.   The court changed its order and directed the GAL to review the records and report to the court if she found anything that required further hearings.   On November 17, 2011, the GAL notified the court orally through the clerk's office that her review of the records indicated that they were simply repetitive of the evidence heard by the court.   The GAL was advised to put her findings in written form and file it with the court.   Based on the oral report, the court began to complete this decision on November 17, 2011 and then upon receipt of an email from the GAL dated November 23, 2011 which was forwarded to the court on November 28, 2011, the court finalized its judgment..  FN2. As of that hearing date the records have not been received by the GAL. She reported to the court that VTDCF officials had told her that they had been mailed.   The court did not postpone the hearing and indicated that it would review the records in camera when they were received.   If the court found anything that it wanted to rely on in formulating its decision, a further hearing would be scheduled.   After the hearing was completed, the counsel for the defendant filed a motion requesting a hearing regarding the records.   The court changed its order and directed the GAL to review the records and report to the court if she found anything that required further hearings.   On November 17, 2011, the GAL notified the court orally through the clerk's office that her review of the records indicated that they were simply repetitive of the evidence heard by the court.   The GAL was advised to put her findings in written form and file it with the court.   Based on the oral report, the court began to complete this decision on November 17, 2011 and then upon receipt of an email from the GAL dated November 23, 2011 which was forwarded to the court on November 28, 2011, the court finalized its judgment.

Adelman, Gerard I., J.