2012 VT 101


Engel v. Engel (2011-118)
 
2012 VT 101
 
[Filed 30-Nov-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2012 VT 101

 

No. 2011-118

 

Glenn Engel, III


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Orange Unit,


 


Family Division


 


 


Holly Engel


March Term, 2012


 


 


 


 


Thomas
  J. Devine, J.


 

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.
 
 
¶
1.            
DOOLEY, J.   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.  
¶
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 the “[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 or individual. 
See Cameron v. Cameron, 137 Vt. 12, 16, 398 A.2d 294, 296 (1979)
(holding that court’s order delegating to social services agency task of
monitoring custody award was beyond court’s authority because such delegation
was not authorized by statute).  In limited cases, we have recognized that
the court may allow experts to make ministerial decisions regarding the
mechanics of visitation.  See LaMoria
v. LaMoria, 171 Vt. 559, 561, 762
A.2d 1233, 1235 (2000) (mem.) (concluding
there was no improper delegation where therapist’s role was to set time for
visitation); Fenoff v. Fenoff,
154 Vt. 450, 454, 578 A.2d 119, 121 (1990) (holding court could allow child’s
counselor to set date of first visitation because counselor was limited “to
indicating the date when visitation is to begin, not to deciding if
visitation should occur”).  We have, however, consistently emphasized the
court’s role of safeguarding the interests of parents and the best interests of
children by limiting custody determinations to court decisions based on current
factual findings.  This is true for both the initial determination of
parental rights and every subsequent stage of modification.  See Knutsen, 2009 VT 110, ¶ 10 (reversing order with
automatic change provision because any change in custody should be based on
real-time analysis of child’s best interests).  Thus, even in a case where
the parties agree “to follow the custody recommendation of a jointly selected
mental health expert, the court cannot be bound by that agreement or by the
expert’s recommendation when the evidence demonstrates that the best interests
of the child requires a different result.”  Luce v.
Cushing, 2004 VT 117, ¶ 10, 177 Vt. 600, 868 A.2d 672 (mem.).
¶
15.        
An exploration of cases from other jurisdictions provides some helpful
general principles regarding the proper limits of delegation.  These cases
generally fall into two categories—cases where the trial court delegates to the
custodial parent the authority to determine the noncustodial parent’s contact,
and cases where the trial court delegates to a counselor or other professional
the authority to determine the noncustodial parent’s contact.  Compare Marquette v. Marquette, 2006 ND 154, ¶ 9, 719 N.W.2d
321 (court delegates to mother authority to decide manner and timing of
visitation), with Paulson v. Paulson, 2005 ND
72, ¶ 21, 694 N.W.2d 681 (mother’s visitation with child set by
therapeutic psychologist).  This case falls into the latter
category involving a neutral decisionmaker.  In
such cases, other jurisdictions tend to invalidate delegations that give a
third-party absolute, unconditional discretion over the noncustodial parent’s
right of contact.  See, e.g., Larocka v. Larocka,
43 So. 3d 911, 912-13 (Fla. Dist. Ct. App. 2010) (improper delegation
where court provided that “contact and visitation between Mother and her
daughter will be established by a counselor”); Wrightson
v. Wrightson, 467 S.E.2d 578, 580-81 (Ga. 1996)
(improper delegation where therapist had power to suspend or modify visitation);
Shapiro v. Shapiro, 458 A.2d 1257, 1259, 1261 (Md. Ct. Spec. App. 1983)
(improper delegation where visitation denied until doctor recommended it, and
then only on doctor’s terms and conditions); Deacon v. Deacon, 297
N.W.2d 757, 762 (Neb. 1980) (improper delegation where court placed in
psychologist authority to “effectively determine visitation, and to control the
extent and time of such visitation”), disapproved of on other grounds by
Gibilisco v. Gibilisco,
637 N.W.2d 898 (Neb. 2002); Peters v. Pennington, 707 S.E.2d 724, 738
(N.C. Ct. App. 2011) (noting that “an order is less
likely to be sustained as judicially-imposed structure decreases and the
decision-making party’s unfettered discretion increases”); Paulson,
2005 ND 72, ¶ 21 (improper delegation
where doctor was allowed to set visitation schedule “carte blanche”); Stefan
v. Stefan, 465 S.E.2d 734, 736 (S.C. Ct. App. 1995) (per curiam) (improper delegation where visitation would not
resume without guardian ad litem approval).
¶
16.        
On the other hand, courts generally allow professionals to make
recommendations or decide details about contact as long as the court retains
authority over the contact decision.  See, e.g., Hamel v. Hamel,
489 A.2d 471, 474-75 (D.C. 1985) (upholding order where court required
noncustodial parent to meet with doctor so doctor could make recommendation to
court, and court retained authority to determine terms and conditions of
visitation); Young v. Young, 370 N.W.2d 57, 65-66 (Minn. Ct. App. 1985)
(allowing doctor to recommend when noncustodial parent would be allowed to
resume visitation, but noting that “the court has a duty to exercise its own
independent judgment”); Peters, 707 S.E.2d at 738 (concluding
permissible delegation where court vested “neutral
decision makers, who are in the best position to evaluate the mental condition
of [mother] and the children, with the authority to craft the details of an
elastic treatment and visitation program”).  Additionally, some
courts have focused on the need for supervision in determining whether a
delegation is justified where the child needs extra protection and there is
some element of abuse or neglect present.  See Wigginton
v. Wigginton, 2005 ND 31, ¶ 12, 692 N.W.2d
108 (upholding order giving custodial parent sole discretion to determine
noncustodial parent’s visitation because noncustodial parent presented danger
to children and custodial parent encouraged children to have relationship with
noncustodial parent). 
¶
17.        
Here, the court’s order impermissibly allows other individuals to make
critical decisions regarding mother’s contact with her children without court
oversight.  The order states that mother is to have contact in three
phases.  The first phase is supervised contact for two hours every
week.  At some undesignated point thereafter, mother may progress to
unsupervised contact in two additional phases: first, overnight visits once a
week and then alternating weekends and one evening a week.  Her ability to
move from one phase to another is determined “by [the treatment team]
consistent with the physical, emotional and psychological health of the
children.”  
¶
18.        
There are two main deficiencies in the delegation order.  The first
is allowing the treatment team unchecked authority to modify the type and
frequency of mother’s contact.  Far from the “ministerial” tasks we have
sanctioned in the past, see LaMoria, 171 Vt.
at 561, 762 A.2d at 1235 (allowing therapist to decide time for visitation),
this delegation involves critical decisions, such as whether mother and the
children are ready to proceed from limited supervised contact to unsupervised
and overnight contact.  These decisions are judicial.  Thus, courts
around the country agree that delegating this kind of decision is
unlawful.  See Shapiro, 458 A.2d at 1261-62 (holding that it was
error for court to delegate to child’s physician ability to decide terms and
guidelines of visitation); Stefan, 465 S.E.2d at 736 (concluding family court
erred in delegating responsibility to guardian to decide issues regarding
visitation).  As the Supreme Court of Nebraska stated, “placing in a
psychologist the authority to effectively determine visitation, and to control
the extent and time of such visitation, is not the intent of the law and is an
unlawful delegation of the trial court’s duty.”  Deacon, 297 N.W.2d at 762. 
¶
19.        
The second related deficiency is that there are no specific,
ascertainable standards governing the exercise of the treatment team’s
discretion.  The court directed that increases in mother’s contact must be
made “consistent with the physical, emotional and psychological health of the
children,” but this standard is so broad and vague that it is no standard at all. 
As explained above, a delegation is not acceptable if there are no standards
governing its exercise and that is the result here.  See Peters, 707 S.E.2d at 738.  Therefore, we reverse the
parent-child contact portion of the trial court’s final order, and remand the
matter to the family division to design a new parent-child contact order
consistent with the law expressed in this decision.  Given the significant
passage of time since the divorce hearing, on remand, the court should conduct
an additional evidentiary hearing to assess the current best interests of the
children.  See Knutsen, 2009 VT 110,
¶¶ 16-17 (reversing custody order and remanding for court to reevaluate
and construct comprehensive current order in child’s best interests).
Reversed
and remanded for further proceedings consistent with this decision. 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]  In its order, the court acknowledged
that it likely had contributed to mother not being able to visit with her
children between January 2009 and February 2011.  To correct this problem,
the court gave the treatment team approximately one month to identify a
neutral, trained therapist willing to undertake the supervisor role.  In
the absence of a recommendation from the treatment team, or other agreement of
the parties, the court authorized the maternal grandfather or paternal
grandmother to supervise visits between mother and the children. 
 


[2] 
Mother makes two additional arguments on appeal.  Mother claims that the
court’s order contains an improper automatic-change provision contrary to our
holding in Knutsen v. Cegalis,
2009 VT 110, ¶ 10, 187 Vt. 99, 989 A.2d 1010.  Mother also argues
that the trial court merely quoted the children’s therapist and pediatrician,
but failed to make actual findings to support the parent-child contact
order.  Given our decision to strike the parent-child contact provision of
the final order and to remand the matter, we do not reach these arguments.


[3] 
There is no merit to mother’s argument that the court’s order effectively gives
the visitation supervisor authority to terminate her parental rights without a finding
based on clear and convincing evidence that she is an unfit parent.  This
argument stems from the provision in the order stating that “[i]f the children become anxious or upset, [the visitation
supervisor] will suspend the visit.”  This provision merely allows the
visit supervisor to suspend an individual visit and does not allow the visit
supervisor to terminate mother’s contact entirely. 



