Opinion
TTDFA156009386S
01-17-2019
Erin E. FRARO v. Daniel E. FRARO
UNPUBLISHED OPINION
Armata, J.
I
BACKGROUND AND HISTORY OF THE CASE
By way of background, the parties were divorced on June 21, 2016. The parties have three minor children: Patrick, born in 2009; Gretchen, born in 2010, and Daniel ("Danny"), born in 2013. Pursuant to the salient portions of the judgment: "Issues pertaining to custody and visitation shall be determined in connection with a juvenile court proceeding pending in the Superior Court for Juvenile Matters at Rockville. All orders pertaining to custody and visitation made therein shall automatically be incorporated as a part of this dissolution judgment." On August 15, 2016, the Superior Court for Juvenile Matters at Rockville (Westbrook, J.) approved an agreement of the parties; the agreement was subsequently incorporated into the parties’ dissolution judgment. Because of the allegations, the children visited with the defendant in supervised settings commencing on August 4, 2015.
The court struggled with how much detail to disclose in this decision, especially given that some of the evidence presented by the parties came from Juvenile Court proceedings which were sealed and confidential. However, the parties sought to introduce the evidence in a public forum and openly discuss their family’s history, the children’s medical and mental health conditions, etc. Given that an understanding of the facts of the case is essential to understand the court’s decision, and in the interests of transparency, the court is choosing to reference the facts as presented at trial. This action was originally commenced because the plaintiff believed that the defendant had engaged in viewing inappropriate, illegal pornography and his computer was seized and searched by law enforcement. It should also be noted that the plaintiff had worked at an adult bookstore and watched pornography with her husband. Illegal pornography was not found, and no arrest resulted from that search as the computer contained lawful, adult material. Subsequently, the parties’ eight-year-old daughter alleged that the defendant inappropriately touched her, although there had been various factual versions given by the child to investigators. Additionally, the parties’ nine-year-old son alleged physical abuse, because the defendant threw him against a wall. Although the claims were initially substantiated, after an administrative appeal, however, they were subsequently unsubstantiated by DCF and no criminal charges were brought. Both parents were the subject of a neglect proceeding in the Superior Court for Juvenile Matters at Rockville, to which they both entered "nolo contender" pleas.
That Agreement provided for the following:
1. Mother and father will enter nolo contendere pleas to the allegations that the children were in a condition or association injurious to their well-being and there will be an adjudication of neglect.
2. The parties shall share joint legal custody of the children with primary physical residence to remain with mother. The parents shall use their best efforts to communicate regarding educational and medical decisions regarding the children. However, should an impasse occur, mother shall have final decision making authority regarding these matters.
3. With respect to father’s access, the parents will contact Dr. Ilene Grueneberg or, if unavailable, another agreed upon family therapist with a goal toward healing the family trauma and restoring father’s access to his children. The process will go as follows: Patrick and Gretchen now have new therapists who they will be working with and will be apprised of this family plan. After a family therapist has been identified, mother and father will contact the therapist and schedule/have an intake appointment to explain the family, situation and the desired treatment goal. Following that, the family therapist will be able to have contact with DCF and GAL. In addition, the family therapist will have contact with all current treatment providers for individual family members AND all individual therapists for the family (mother’s therapist, father’s therapist, the children’s therapists) will have access and share information with one another. Dr. Schiappa’s report will also be shared with the family therapist and all treatment providers will also have a copy of Dr. Schiappa’s report.
4. Both parties shall be kept informed of, and have access to educational records and the family therapist and all of the children therapists and treatment providers, both medical and mental health, including access to written reports.
5. Erika Mott shall have no further involvement in this matter except to communicate with any treatment provider, if requested. The new therapists, including family therapist, shall also be permitted to speak with Mark Napiello, former therapist for father and the children, if requested.
6. Parties may communicate with new therapists, including family therapist.
7. Father shall commence supervised visits with child, Daniel, immediately with AMPS or any other qualified professional who shall supervise father’s visitation which shall take place outside of Daniel’s residence. Visitation sessions shall occur at least once per week and the terms and conditions of said visitation shall be subject to modification based on Daniel’s best interests subject to agreement of the parties or modification of the court.
8. This agreement shall be incorporated into the parties’ dissolution judgment and jurisdiction over custody/visitation issues shall revert to the family court.
9. Neither party shall remove or relocate the children from the state of Connecticut without order of the court.
On October 5, 2018, the defendant, Daniel Fraro, filed a Postjudgment Motion to Custody/Access (Entry # 328), a Motion for Order RE Therapy for the Minor Child, Daniel (Entry # 329), and a duplicate Motion for Order RE Therapy for the Minor Child (Entry # 330). These motions seek to have primary residence of the minor child, Danny, to be vested with defendant, and for the child to participate in therapy. On October 19, 2018, the plaintiff, Erin Fraro, filed an objection to the Motion for Order re Therapy (Entry # 333) as well as an objection to defendant’s Postjudgment Motion to Custody/Access (Entry # 334). A hearing on this matter was held on December 11, 2018 and December 12, 2018. Present at the hearing was the plaintiff, who was self-represented, and the defendant, who was represented by counsel. Both parties testified at the hearing. The court also heard testimony from Attorney Kate Kowalyshyn, the Guardian ad Litem ("GAL"); Elisa Carbone from the Extra Day Treatment Center; Stacey Falk from the Department of Children and Families ("DCF"); Dr. Keith Roeder, a therapist working with the family pursuant to a court order; and, Jacqui Fraro, the defendant’s current wife.
II
EVIDENCE PRESENTED AT THE HEARING
The court reviewed the supervised visitation reports (Defendant’s Exhibits C-F) prepared by various supervised visitation agencies. The reports covering a period from August 4, 2015 through January 11, 2017, document positive interactions between the defendant and the children. While the visits initially started off with all three children, the reports eventually only concern the defendant and Danny, with the elder two children choosing not to participate. The reports also indicate that all three children are "comfortable with their father," and "responded [to him] without hesitation." The reports further comment that when "father appropriately, physically touched them, neither child responded in a way that made them look like they were uncomfortable." Additionally, the reports reflect that the children asked if and when they were going to see him again. (Defendant’s Exhibit D.) In the August 11, 2015 report, the writer reported that "[u]pon entering the room, all of the children ran to greet and hug their father." At the end of the visits, "[t]he kids then all hugged their father in a group. Patrick commented that he never wanted to leave." (Defendant’s Exhibit C.)
The court heard testimony that although the supervised visitations started with KIDSAFE CT it was subsequently switched to AMPS following a complaint by the plaintiff relative to KIDSAFE CT’s supervision, specifically because they allowed a child to remain in soiled undergarments.
The AMPS visitation reports demonstrate that the children did not appear anxious when visiting with their father, and that he "set limits on them in an appropriate manner." (Defendant’s Exhibit E.) The author of the report states that the plaintiff was prodding Gretchen about whether she had a stomach ache during the visit, without Gretchen having given any indication of stomach discomfort. Also, the author reports how the plaintiff and maternal grandmother were inappropriate and angry with the supervisor at an exchange, and how they blamed the defendant for not properly cleaning a child after he went to the bathroom. In that report, the writer stated "grandmother was the more inappropriate adult and mother did not set limits on her negative verbalization in front of the children. There was no parenting offered the children that encouraged a relationship with father ... Mother needs parenting education, as does grandmother, as parenting relates to developmental needs of the children and permission for positive interactions with father." (Defendant’s Exhibit E.)
As the visits continue, Patrick indicates that he "does not want to be there," and that he wants to be with his "other family," although the defendant informs him that "he is his family too." Soon, Gretchen begins mimicking Patrick’s behavior, indicating "she does not want to go to the visits, refusing to get out of the van." In certain visits, once the reluctance is overcome, the supervisor reports, the children "seemed at ease and do not appear anxious."
There are certain visitation reports, specifically September 29, 2015, which are telling. In this report, Gretchen asked her father "how come you threw Patrick against the wall?" The defendant replied that he did not, and asked who told her that, to which Gretchen replies "mommy." On another day, following a positive, fun visit, Patrick asks the supervisor "if [she] could say they had a bad time." The supervisor then asked him who he wanted [her] to say that to. He responded "to his mom."
In September 2016, the supervision reports focus solely on Danny, and demonstrate that the visits are appropriate, positive and loving. Some of the reports indicate that Danny was excited to see his father and ran over to him for hugs. (Defendant’s Exhibit F.) Currently, the two elder children do not see the defendant except at reunification therapy, where the children are denigrating and insulting to their father. Also, Danny sees his father every Monday and Thursday for four hours, and on the first and seconds Sundays of each month for six hours. It was reported recently that Danny is being picked on by his elder siblings because of his positive feelings for his father. Danny is having a hard time emotionally, is having outbursts, and has been the subject of intensive outpatient therapy relative to his family dynamic.
Dr. Keith Roeder, a clinical psychologist, was presented as a witness by the defendant. Roeder, who treats children and families, was qualified as an expert witness by agreement of the parties. The court found Roeder’s testimony credible and very sad, but enlightening. Roeder has been involved with this case since May of 2017, and had significant experience with the family in that he acted as a reunification therapist pursuant to the juvenile court order. Roeder’s objective is to try and improve the relationship between the defendant and the children. Towards that end, he testified that he employed a multitude of strategies, including meeting with the parents individually, the children individually, meeting with all members of the family, and meeting with various combinations of parents and children, some of which had marginal success. He has had over fifteen sessions with the family or its various members. He indicated that children still believe, based upon the plaintiff’s belief, that defendant had abused them in some way, although he indicated the children could not provide specifics of the abuse. He testified that a review of the records showed no evidence supporting these claims, and that there were multiple investigations by DCF and police departments, none of which resulted in confirming the claims of abuse. On that basis, Roeder does not believe that the allegations against the defendant are true. Roeder indicated that the defendant is in a "catch-22 situation" in that the only way the defendant’s children would reunify with him is if he admitted the abuse, which he steadfastly denies. Roeder also testified that the children could begin a meaningful reunification with the defendant if the plaintiff would acknowledge that he is a safe parent, something she feels she cannot do. According to Roeder, the defendant understood the position the children were in, and acknowledged the way they feel. Roeder also testified that the two older children demonstrated anger and aggression towards the defendant, and that they were rejecting him, yet defendant continues to pursue a relationship with them. Roeder indicated that the children are influenced by the parental conflict, much of which can be sourced from plaintiff.
It is of note that father is only seeking physical custody of Danny, and is willing to allow his other children to remain with their mother out of concern for how they would react. The defendant still intends to maintain a therapeutic relationship with them, notwithstanding the allegations made against him and their rejection of him.
Roeder also described the relationship between Danny and his father which he described as positive, caring and nurturing. Roeder indicates he has no concerns if Danny is left alone with the defendant. The defendant is attentive to Danny’s needs; although, he may, at times, have difficulty setting limits for him, which may be caused by his relationship with his other children. The defendant takes instruction from Roeder, and incorporates his suggestions into his parenting. Roeder testified that Danny was eager to see his father and loved his father, but those same feelings could be manipulated by the older children who pick on Danny for expressing positive feelings about his father.
Roeder also testified about the supervision reports he reviewed, which he indicated were good. Roeder also noted that several of the reports indicate that all three children had good visits with the defendant, but that the children asked the supervisor not to tell their mother, requesting that, instead, she report that they had bad visits. Roeder finds this troublesome and telling. The court is in agreement with Roeder’s concerns.
Roeder describes the plaintiff as a dedicated mother whose focus is on the children and loves them, but that her perception of the defendant is distorted and she can be emotionally volatile which can escalate quickly, and negatively impacting the children. Roeder stated that the plaintiff would be upset with various approaches he took, and that mother’s emotionalism affects the children’s behaviors. For example, if the plaintiff was unhappy with a reunification session, she would storm out of his office. The plaintiff has a strong belief system, and is certain there was abuse between the children and their father. The plaintiff believes that the defendant is deviant, and has either been neglectful, absent or abusive to all three children. It is Roeder’s opinion that the plaintiff’s beliefs are the foundation for why the children reject their father; yet, there is no rational basis for those beliefs.
Roeder also testified that the older children are a "toxic influence" on Danny, and they are very critical of Danny’s relationship with the defendant. Roeder, who very rarely recommends the separation of siblings, thought it was in Danny’s best interest to be placed with the defendant at this time, because Danny’s current living situation is detrimental to his wellbeing, especially given the positive views he has of his father. He also felt that the defendant could more easily redirect Danny, who has mental health issues and can suffer from outbursts. Roeder described Danny as a child who is strongly bonded with his brother and sister, wants their approval, and has a hard time individuating.
Roeder describes the defendant as a caring father who loves his children as evidenced by the lengths he has gone to in order to try to have a relationship with them. Roeder testified that defendant can be sarcastic, passive, tolerates rejection, and can be avoidant, but that the defendant can also incorporate suggestions so that he may be able to better manage Danny. In contrast, the plaintiff may have more difficulty managing Danny.
Evidence was presented that Danny, while father was not around, began punching his mother, prompting a call to the police for assistance with Danny.
The plaintiff cross examined Roeder relative to his review of the DCF protocol. (Plaintiff’s Exhibit 1.) Specifically, the plaintiff, in an effort to prove her assertions, drew Roeder’s attention to a statement wherein the defendant allegedly stated to the plaintiff: "I’m a pervert; everyone is right, I’m no better than a pedophile." Roeder acknowledged the statement, but did not feel it was determinative in that defendant can be sarcastic, and that he specifically denied the allegation to Roeder. She also asked Roeder to acknowledge that the defendant has engaged in physical punishment of Danny; including a specific incident where the defendant dragged Danny on his knees on asphalt, and that is why the older children do not feel safe with defendant. Roeder disagreed with this statement indicating that Danny can be a physical child who hits and punches, and that the plaintiff has also had physical altercations with the child.
The court also heard testimony from Jacqui Fraro, the defendant’s current wife, who testified that she and the defendant have been together for three years, although they were married on September 9, 2017. Jacqui has been employed as a preschool teacher for twenty-two years, and is a mandated reporter. She testified that she would never let any child abuse or injury go unreported, because she not only loves children but it could also affect her career. In the past, she has supervised the defendant’s visits with the children. The plaintiff has objected to Jacqui transporting Danny, even though she works close to where the children reside. Jacqui described a caring relationship between Danny and the defendant, and that she and the defendant are able to redirect Danny when he misbehaves. Jacqui testified that when Danny and the defendant are together on Sundays, they do things that Danny wants do such as: garden, watch movies, walk in the woods, feed the chickens, and play on the farm. She has not observed any inappropriate behavior, but noted Danny can act up when he is tired. She described one incident where Danny threw a plate during mealtime and, after a timeout, he came back and apologized for his outburst and helped clean up the mess. Jacqui testified that Danny has his own room at their house, a house that they share with defendant’s father and his girlfriend Anne Murphy, who are also close to Danny. Jacqui described the defendant as "conflict adverse" and "easy going."
Murphy’s relationship with Danny was described as "grandmotherly" and that she is a retired teacher who also has knowledge of children’s behavior and how to redirect them if need be.
On cross examination, the plaintiff challenged Jacqui about a time when she and the defendant returned Danny with a dirty bandage for a burn the child suffered. Jacqui responded that she was concerned about the plaintiff’s reaction to their treating the wound in a way that was different than plaintiff thought she should, because the plaintiff failed to provide instruction for the wound care prior to the exchange. Given the cirumstances, they did the best that they could by wrapping the bandage with skin sensitive tape so as to make "a belt" that could be easily removed, and so that the plaintiff could wash and treat the wound after Danny had been returned to the plaintiff.
The plaintiff also challenged Jacqui about how much homework and reading the defendant did with Danny, and whether Danny was registered as a visitor when the defendant and Danny went to see Jacqui at the pre-school where she works, and if the facility was inspected for food safety since Danny has had meals there sometimes. Jacqui indicated that the preschool only serves snacks, so it was not inspected. The court was not persuaded by this line of questioning. The court found Jacqui’s testimony credible and caring.
The court heard testimony from Elisa Carbone, a treatment provider at Extra Day Treatment Center. She testified as to Gretchen’s mental health diagnoses and her prescribed medications. She also testified as to the programs that she was in, that she is scheduled to be discharged, and that Gretchen is heavily involved in dancing and gymnastics. Carbone testified as to some involvement by the defendant, but that the plaintiff was more vigilant. Carbone also brought subpoenaed treatment plans relative to Gretchen from the Village for Families and Children, Inc., which were admitted into evidence as Plaintiff’s Exhibit 3. After examining the records, the court finds the substance of the documents troubling, as they indicate, generally, that Gretchen suffers from a "history of trauma and parental conflict." Given their confidential nature, the records have been ordered sealed. The court found Carbone’s testimony credible, although she offered no opinion as to the ultimate issue in the case.
In its discretion, the court has ordered the records sealed pursuant to General Statutes § 46b-11, which provides in relevant part: "The records and other papers in any family relations matter may be ordered by the court to be kept confidential and not to be open to inspection except upon order of the court or judge thereof for cause shown." See also Myles v. Myles, 136 Conn.App. 483, 488-89, 46 A.3d 301 (2012).
The court also heard from Stacey Falk, a DCF social worker. Falk explained how she was involved with the family, the referrals made to DCF, which were extensive. Falk conducted a home visit at the plaintiff’s residence home, and concluded that "the children were being adequately cared for." Falk also testified about the services the family was referred to, such as the Sterling Center for individual counseling and trauma-focused cognitive behavioral therapy (CBT). Falk also testified that there had been a recent referral after Patrick disclosed to his therapist, a mandated reporter, that Danny told him that the defendant stared at his penis too long, and gave him melatonin during visits. Falk testified that these allegations were unsubstantiated.
In her referral, Falk indicates that there were multiple referrals to DCF which included legal intervention, allegations of sexual abuse by father, and allegations of physical neglect also by father and that no criminal proceedings were initiated.
Falk also testified that there were behavioral concerns on or about July 5, 2017, when Danny demonstrated aggressive behavior towards his siblings, the family pets, his mother and his grandmother. Danny’s behavior was characterized as out of control; he was hitting his mother, pulling her hair, and throwing things. This behavior led the grandmother to call the Portland Police Department. The court finds Falk’s testimony credible.
The defendant’s testimony demonstrated that despite his efforts, he is not seeing improvement in his relationship with Gretchen and Patrick, but is willing to continue trying by attending reunification therapy with Roeder. He has thoroughly cooperated with of all the investigations into him by speaking with police, prosecutors, DCF, taking polygraph tests, etc. He indicates he has never been formally charged with any of the allegations made. He agreed to the implementation of the temporary restraining order simply to allow an opportunity for things to calm down. He testified that he has borne all the expenses relative to this litigation including legal fees, GAL’s fees, the cost of reunification therapy, etc. He testified that he has spent approximately $ 60, 000 trying to improve his family’s situation. Of the many claims which have been alleged against him to DCF, none have been substantiated; yet, he has agreed to supervised access with his children in order to prove that he is not a danger to them.
He testified that, notwithstanding the juvenile court order that became the order of this court, it took a while to engage the family in reunification therapy. He indicates that he is seeking to expand his time with Danny, but is frustrated and hurt that his other children tell Danny to tell him: "we hate you." He testified that his current relationship with Gretchen and Patrick is not very good. He also indicated that his relationship and communication with the plaintiff needs improvement, and that he can be sarcastic. He was seeing a therapist to deal with the issues presented in this case.
At the court’s request, the plaintiff also testified. She testified that the defendant is not current on his extra-curricular activities expenses, which is very important to the children’s wellbeing. The plaintiff is concerned that changing Danny’s schooling is not in his best interests. The couple had previously resided in Somers, and had difficulty getting appropriate educational services for Patrick. She feels that she has Danny’s schooling in place, and to relocate him to Somers may result in the school system having to outplace him to yet another school, adding to his stress and anxiety. She indicated that the defendant has not been present when she needs help with the children, and that he fails to do homework with Danny. She was critical of the defendant for not knowing the side effects of Prozac, which has been prescribed to Danny. She is also worried about how Danny’s removal from her home will impact his relationship with the older children. She agreed that she and defendant need co-parenting classes; that it is beneficial for the children to have a relationship with their father; and that the defendant and Danny need more time together.
The court also reviewed the DCF Family Assessment Protocol, dated May 9, 2014 (Plaintiff’s Exhibits 1), admitted into evidence by the plaintiff. The assessment provides a history of this family, including the allegations of the defendant’s physical neglect of the children. Additionally the court reviewed Today’s Youth, LLC Supervision Visitation Report dated March 8, 2017 (Plaintiff’s Exhibits 2), which was positive and described the interaction between defendant and Danny as good. The plaintiff sought to admit this into evidence based upon one comment which appears in the report indicating that the defendant could not follow instruction. The court, however, is not persuaded.
Additionally, the court reviewed Plaintiff’s Exhibit 5, which is a clinical intake form completed by the defendant for the Sterling Center, a treatment facility where Danny is being seen. During her case in chief, the plaintiff pointed out that the defendant failed to provide medical providers with necessary information about Danny, and such omissions could expose the child to significant risk. Additionally, as a part of that exhibit, the court reviewed the clinical notes of Eliza Borecka, Clinical Director for the Specialized Treatment Services at the Sterling Center, dated April 25, 2018, in which she observed a positive, trusting relationship between Danny and the defendant. Borecka notes that Danny seeks the defendant’s affection and approval, seeks his guidance and support during play, expresses positive affect in the presence of his father, and utilizes the defendant’s guidance as his point of reference during exploration.
Among the information the defendant failed to produce is when Danny started crawling, speaking and walking, which the defendant confirmed he did not know. Additionally he confirmed that he left baby sitters blank, because he could not remember, as well as prior hospitalizations to have tubes put in his ears and have his adenoids removed. Further he left areas concerning "Behavioral Problems," "Problems with Siblings" and "Disciplinary Actions" blank.
Following all the other witnesses, Attorney Kowalyshyn, the GAL, testified at length regarding the protocol she undertook in this matter, the records she reviewed and her history with the case. Kowalyshyn actually supervised two visits between father and children in May of 2017. She testified about the lack of success in achieving reunification between the older children and defendant, and how that is affecting Danny. The Fraro children are constantly in conflict and, according to Roeder, the plaintiff may need them to be, so that she can comfort them. She described the plaintiff’s household as chaotic, which is causing emotional harm to Danny. She also testified that the older two children are picking on Danny because of his feelings for his father.
The GAL also testified that mental health professionals in the case have opined that the plaintiff suffers from mental health issues, possibly Borderline Personality Disorder, needs therapy, and is overwhelmed.
Kowalyshyn’s recommendation is that Danny needs a break from his current family situation which is consuming him, because he is torn by his love for his father, but the other children are convincing him that he does not, and they are turning him against their father. Danny is made to feel guilty about his love of his father, experiences he has had with his father, or about gifts his father has given to him. Kowalyshyn is concerned that if nothing is done, Danny’s relationship will share a similar fate as the defendant’s relationship with the older children, and Danny could further decompensate. She testified that the "kids are acting out what they think their mom wants them to do."
The GAL reported that Danny told professionals his father threw him down the stairs. These remarks also mimicked comments made by Patrick. The claim was not substantiated by DCF.
Kowalyshyn also testified about her contact with Borecka, which corroborates Borecka’s intake notes and reports. When the plaintiff met with Borecka, the plaintiff told her that she cannot count on the defendant; she began yelling at her saying "you think I am a bad mom"; explained that the defendant does not do anything; and alerted her to the history of abuse between father and children. Borecka’s own observations, however, were that that the visits between the defendant and Danny were "fabulous." She recounted an incident where Danny was kicking the defendant, yet the defendant appropriately defused the situation. Kowalyshyn reported that, according to Borecka: "Danny could be saved if he lives with his dad." Borecka told Kowalyshyn that Danny "feels safe with his dad," but that the plaintiff cannot appropriately deal with Danny’s behavior. Instead, she turns the focus on herself during these moments by letting Danny know how she feels during his behavioral incidents.
Kowalyshyn also testified about Roeder’s observations regarding the reunifications sessions between the defendant and the children. The children were described as "reactive," "acting out," "lacked limits," "rude," "disrespectful," and, "not afraid of dad." Roeder indicated that this was result of the "complete estrangement" of the parents. The Fraros, according to Roeder, are a "disturbed family system" wherein the children show no positive feelings for their father because of how their mother reacts, and that the children are overly critical of their father. He described their living situation as a "war zone."
Kowalyshyn testified about a conversation she had with Sam Star, Patrick’s counselor, who described Patrick as struggling, agitated and frustrated. Additionally, the plaintiff seeks to control Patrick by threatening a punishment of having him live with his father. By doing this, the plaintiff is sending an inappropriate message that the defendant is bad.
The GAL testified that while in the past Patrick has denied his father touched him, Danny now claims his father touched him "thousands of times."
Kowalyshyn also reported about conversations she had with other professionals associated with the family, specifically Danny’s pre-school teachers at CRT who thought that Danny had behavioral issues, was testing limits, had problems in transitions and that mother, who they felt need therapy and was feeling overwhelmed, "wanted to give the kids up." The teachers indicated at times mother presented as "not stable," "agitated" and "on the edge." The teachers told Kowalyshyn that they did not think it was a stable home for Danny, and that Danny was picking up on the plaintiff’s agitation. In a conversation in May, they reported how Danny was attacking his mother in the car, causing her to take him to Connecticut Children’s Medical Center, but afterwards he presented at school as happy, although he indicated his "butt" hurt. Following that revelation, plaintiff pointed out that Danny had spent the weekend with his father, and she then proceeded to tell the teacher of her version of father’s history including the claims of sexual abuse. Interestingly, when the teacher asked mother what she wanted to happen, the mother stated she wanted to get back together with father.
Kowalyshyn also spoke with the children’s pediatrician, Dr. Lauren Melman. Melman agrees with Roeder’s recommendation that Danny should reside with his father. She is also worried about the plaintiff, and believes that she needs therapy.
Kowalyshyn testified that she spoke with a school counselor for all three children, Carolyn Janis. Janis reported that Danny, whom she described as an anxious child, lives in a state of constant vigilance in that he does not know what he can share, or how his siblings will react. Janis recounted an incident where the school reported that Danny stabbed Janis in the eye, but Janis indicated she thought the school system overreacted because Danny had thrown a pencil that hit her. At the time of the hearing, while Danny was in the primary custody of the plaintiff, it was reported that he was not enrolled in public school, and was not receiving any therapy.
Kowalyshyn also reported that as of October 20, 2018, the plaintiff does not want the defendant to have more time with Danny.
There were recurring themes woven throughout Kowalyshyn’s testimony in that the children are expressing the plaintiff’s desire not to allow the defendant to have a meaningful relationship with the children; that the plaintiff is at variance with the defendant’s reunification efforts; that there is chaos in the plaintiff’s home which is detrimental to the children; the plaintiff is feeling overwhelmed; and, the children are demonstrating troubling behaviors at school, counseling and home. Kowalyshyn’s testimony recounted several troubling incidents, which the court finds credible, demonstrating these themes.
These include the following:
That Gretchen accused the GAL of not listening to Patrick, who did not want Danny to have "alone time" with defendant. When the GAL explained that the parents agreed that this was best for Danny, Gretchen indicated "well that is not what my mom wants."
In September 2018, father missed an appointment due to having his appendix removed, but when the children saw him at Dr. Roeder’s office they told their mother and grandmother that the defendant was lying about his operation.
That the DCF referrals relative to Danny were made at times that coincide with court dates wherein the GAL was recommending increasing father’s access times.
That Gretchen was given a "Fitbit" by father as present and that Gretchen was excited to receive it. However, Gretchen later rejected it believing her father was using it to track her because her mother showed how that could be done on a computer.
That at an office visit of January 26, 2018, the children would "explicitly" ask Dr. Roeder to not tell the plaintiff that they had good visit in his office.
That the plaintiff, at a reunification session, was concerned that Patrick, because of the trauma of seeing his father, would throw up or soil himself. Dr. Roeder reported that that did not happen.
That there were numerous referrals to DCF, some which were not accepted because of the family history.
Kowalyshyn’s recommendation to the court was that physical custody of Danny should be immediately switched to the defendant, so as to remove Danny from the chaos and bring calm to the family. Kowalyshyn testified that her recommendation was not made lightly, and that she has never before recommended the separation of siblings, noting that her recommendations were consistent with the recommendations of the many professionals involved in the case including Roeder, Melman, the school counselors, and Borecka. The court finds that Kowalyshyn was thorough in her investigation, credible in her testimony, and genuinely concerned about her wards.
The court also reviewed a video tape of a visit from October 4, 2015, which clearly shows the children enjoying their time with the defendant; the defendant being attentive to their individual needs, including on checking with them if they need to use the bathroom; and, having fun. At the end of the video, Patrick, asks the defendant to not tell the truth and say that they had a "terrible time" so his mother does not get upset. (Defendant’s Exhibits B.)
III
BURDEN OF PROOF AND APPLICABLE LAW
"Before a court may modify a custody order, it must find that there has been a material change in circumstances since the prior order of the court, but the ultimate test is the best interests of the child." (Internal quotation marks omitted.) Harris v. Hamilton, 141 Conn.App. 208, 219, 61 A.3d 542 (2013). "The burden of proving a change to be in the best interest of the child rests on the party seeking the change." Kearney v. State, 174 Conn. 244, 249, 386 A.2d 223 (1978). In a motion for modification of custody, the moving noncustodial parent bears the burden of proof by a preponderance of the evidence. In re Anthony E., 96 Conn.App. 414, 420, 900 A.2d 594, cert. denied, 280 Conn. 914, 908 A.2d 535 (2006).
The court is also charged with deciding these matters based upon the statutory criteria set forth in General Statutes § 46b-56(c) which, in relevant part, directs the court when making any order regarding the custody, care, education, visitation, and support of children, to "consider the best interests of the child, and in doing so [the court] may consider, but shall not be limited to, one or more [of sixteen enumerated] factors ... The court is not required to assign any weight to any of the factors that it considers, but it shall articulate the basis for its decision." In considering these factors, the court must assess the parties’ credibility. "The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties ..." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). "It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the factfinder to reject or accept certain evidence ..." (Internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123.
These factors include: "(1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b."
Further, in deciding issues of custody and parental access, "the ultimate test is the best interests of the child." Kennedy v. Kennedy, 83 Conn.App. 106, 113, 847 A.2d 1104, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004). In exercising that discretion, the court considers the rights and wishes of the parents, and may hear the recommendations of professionals in the family relations field, but the court must ultimately be controlled by the welfare of the particular child. See Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980); Seymour v. Seymour, 180 Conn. 705, 712-13, 433 A.2d 1005 (1980); Stewart v. Stewart, 177 Conn. 401, 408, 418 A.2d 62 (1979); Palmieri v. Palmieri, 171 Conn. 289, 290, 370 A.2d 926 (1976). This involves weighing all the facts and circumstances of the family situation. Each case is unique. The task is sensitive and delicate, and involves the "most difficult and agonizing decision that a judge must make ..." R. Berdon, "Child Custody Litigation: Some Relevant Considerations," 53 Conn. B. J. 279, 280 (1979).
Our Supreme Court has described the decision of the court in awarding custody to be an "awesome responsibility" and has gone on to say that the task is to "find the most salutary custodial arrangement for the children ... [taking into account] the parents’ past behavior, since [the court] must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children’s growth, development and wellbeing." Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981). Yet, it is the duty of the court to determine "not which parent was the better custodian in the past but which is the better custodian now." Id. Neither mother nor father is preferred as custodian of a minor child; Simons v. Simons, 172 Conn. 341, 349-50, 374 A.2d 1040 (1977); and the decision as to who will be awarded custody requires a "flexible, individualized adjudication of the particular facts of each case without the constraint of objective guidelines." Seymour v. Seymour, supra, 180 Conn. 710.
"The court is and must be free to rely on whatever parts of an expert’s opinion that it finds to be probative and useful, or on the testimony of one expert over another." Faria v. Faria, 38 Conn.Supp. 37, 41, 456 A.2d 1205 (1982), citing Yontef v. Yontef, supra, 185 Conn. 283. "The weight to be given to psychological testimony by professionals in mental health is, in matters of custody, as it is elsewhere, a question for the trier of fact. It should be noted, however, that expert opinion must be evaluated in light of the expert’s opportunity to come to a reasoned conclusion." Seymour v. Seymour, supra, 180 Conn. 712.
IV
DISCUSSION AND FINDINGS
The court finds that the defendant has met his burden of proof in that there has been a change of circumstances such that he is in a new relationship; therapeutic supports that were put in place are not working; and, that the current parenting plan is clearly not in the best interests of the minor child Danny and, in fact, may be harming him. Accordingly, the parenting plan must change, and because the parties are unable to agree, the court must make a suitable determination. The court finds that the current arrangement is not in the children’s best interests.
In determining what that parenting plan should be, the court bases much of its decision on Roeder’s testimony and recommendations, since he has observed the family for a significant period of time, has tried various methodologies to improve the children’s relationship with the parents, has reviewed the materials involved in this case, and has spoken with the parties and other professionals, including the pediatrician and the GAL.
The facts surrounding this case are troubling, and reflect a family whose individual members are in crisis, and a family system that is re-infecting itself. As described during the trial, the family is in a "war zone," is having a toxic influence on its members, and is a "disturbed family system." These elements do not bode well for a happy childhood. The evidence in the record demonstrates that much of this seems to source from the plaintiff. The court finds that, notwithstanding her voiced desire for the defendant and the children to have a meaningful relationship, she may feel threatened, and cannot get over the family she used to have, which ironically, included the defendant. The court also finds that the plaintiff loves and supports her children, and is probably overwhelmed by the issues they present. The court believes, absent supporting a healthy relationship between the defendant and children and reducing the chaos in her home, she is doing her best. The description of her parenting illustrates a woman who needs help in life, is unable to accept assistance offered to her out of concern, and feels "overwhelmed" by the "chaos" that she has helped to create; themes many professionals in the case used to describe her current situation. If the plaintiff would only support a relationship between the defendant and the children, some of her concerns and much of that chaos might be alleviated.
What is unfortunate, is how the elder childrens’ relationship with their father has so quickly deteriorated, and how that same path is now a possibility for Danny, who is busy dealing with life the way only a five-year-old can. This family dynamic and polarization only makes it harder for a sensitive little boy to navigate life. Danny loves all the members of his family, and is torn as to what and who to believe; and, ultimately eroding his confidence in who he is able to trust. The court is persuaded by the multitude of professionals involved that Danny needs calm and to be away from the chaos. Additionally, because the defendant appears more capable of managing any problems that Danny is having, the defendant can prevent further erosion of the parent/child relationship, which is critical in growing up. The court is puzzled as to why Gretchen and Patrick could not have that same loving relationship with defendant, but is equally concerned about possible bullying or provocation of Danny by the older children, or other members of the household. The challenge will be for the plaintiff to reflect on her actions and do what she can to improve her family situation and prevent further harm to all the children and the family. The court believes that the defendant is willing to assist with those efforts, notwithstanding the allegations made, the costs incurred and the harm done.
The court has set a review date to determine if the parents can rise to that task, and improve the lives of their children, preventing further harm or destruction. The court will also evaluate whether the parents can protect the children from outside harms, such as comments from third parties; whether or not the parties are seeking to improve their lives and the lives of their children by attending and taking advantage of individual counseling and co-parenting counseling efforts; and the efforts being made to reunify the defendant with the elder children, bringing the family together so to share parental responsibility and decision making, while, hopefully, repairing past harm. The court will also review how well the parents are doing at keeping each other informed about the children, arriving at joint plans that are in the best interest of the children, and providing the children the ability to be less anxious and benefiting from what each parent has to offer. At that time, if there is a change in the family dynamic, the court will consider changing its orders.
Based on the evidence presented, the court finds that the plaintiff does not understand Danny’s temperament and developmental needs, and/or lacks the capacity to understand and meet those needs. Notwithstanding her statement to the court that she supports a relationship between the children and their father, the court finds that the plaintiff neither has the willingness nor the ability to facilitate and encourage a continuing parent-child relationship between Danny and the defendant, and has demonstrated that she is unable to comply with court orders. The court also finds that the plaintiff has demonstrated a pattern of manipulation or coercive behavior in an effort to involve the children in her relationship with the defendant. The court cannot find, given the children’s history, that they are presently well-adjusted in their home, school and community environments. As to Danny, the court also cannot find that he has lived in a stable and satisfactory environment and, given the comments of the professionals who know Danny, it is clearly undesirable for him to remain in that environment.
The court is also concerned about the mental health of all individuals involved, including the effects of any actions of an abuser; and, whether any child or sibling has been abused or neglected as defined in General Statutes § 46b-120. Given the reports, the court cannot find that abuse by the defendant has occurred. Further, the court draws a negative inference, because the parties have not satisfactorily completed participation in a parenting education program pursuant to General Statutes § 46b-69b. All of these factors support a change in physical custody, and Danny’s separation from his siblings at this time.
The court has, along with the various professionals involved in this case, struggled with the idea of separating Danny from his siblings, recognizing that an option such as this one is something very rare and difficult. The court finds, however, that such an option is necessary and in Danny’s best interest.
"Opposition to split residence stems in part from research findings that children fared better in a strange situation when they were kept with siblings ... and when separated from both their parents ... Other predicted disadvantages of split residence are that it deprives children of important support and comfort at the turbulent time of parental divorce ... and is likely to result in the formation of unhealthy parent/child alliances ... both of which realities are likely to prolong children’s adjustment to divorce ... Split residence may also deprive young children of important caretaking by older siblings ... and impedes the development of the sibling bond which requires a high level of physical and emotional access between siblings ... However, predictions about the impact of split residence on the adjustment of children demand cautious acceptance because of the very small number of empirical studies of families with a split-residence arrangement ... Moreover, other research has suggested that opposition to split residence may be based on a romanticized notion of sibling relationships. [Research has also] found that sibling relationships were at times troubled rather than supportive in dysfunctional or conflictual families. [Furthermore], siblings after divorce tended to become more hostile towards each other as they competed for scarce parental resources, and ... strong parent/child rather than sibling alliances were more likely to form." Bolat v. Bolat, Superior Court, Judicial District of New Haven, Docket No FA-10-4042065-S (July 15, 2014, Munro, J.).
Notwithstanding the foregoing, the court is hopeful that the plaintiff can utilize services, including appropriate mental health services, to help improve the lives of her children and to put the family in a better situation. However, if no progress is made and the family continues to suffer from chaos, false reporting, manipulation, or decline in the children’s wellbeing, she may very well risk the loss for physical custody of Patrick and Gretchen as well.
V
ORDERS
In an effort to give the minor child Danny relief from his current familial situation and so as to ease the number of transitions that he is subjected to, including changing schools, the court issued the following orders on December 28, 2018.
After consideration of all the evidence presented, including the testimony of the parties and witnesses, including their demeanor and credibility, a review of the court file, the exhibits admitted, arguments presented, as well as all rules of practice and applicable common and statutory law, including, but not limited to, Connecticut General Statutes § 46b-56, together with applicable case law, the court concludes that the defendant has met his burden of proof by a preponderance of the evidence and that there has been a change of circumstances and that the current parenting plan is not in the best interest of the minor children, specifically Danny. Accordingly the court makes the following orders, which the court finds to be in best interest of all the minor children:
1. Physical custody of Danny is immediately awarded to the defendant.
2 The parties shall have joint legal custody of Danny, however, in the event of a dispute as to a major parenting issue concerning Danny, the defendant shall have final decision making authority.
3. The plaintiff shall no longer have final decision making authority regarding Patrick and Gretchen; instead, the parties shall engage in co-parenting counseling (see # 12 below) to mutually decide any major decisions that affect the children, and to come up with a joint plan that is in their best interests.
4. Commencing on Thursday, January 4, 2019, the plaintiff shall have access to Danny on Tuesdays after school until 6:30 p.m.; Thursdays during any period of reunification therapy; and Friday from after school until Sunday afternoon at 4:00 p.m. For the Friday visit, the defendant will drop the child off at the plaintiff’s after school. The plaintiff will return the child to the defendant on Sunday at 4:00 p.m.
5. In the event that Danny does not do well with the revised access schedule, including being ridiculed or provoked by his siblings or others for residing with his father, the court may consider suspending the plaintiff’s access.
6. Nothing in these orders shall be deemed to prevent either party from attending any school events, including conferences and activities for the children, or preventing the parties from mutually agreeing to other access times, including additional overnights.
7. Pursuant to General Statutes § 46b-56(g), both parties shall be allowed access to the academic, medical, hospital or other health records of their minor children.
General Statutes § 6b-56(g) provides: "A parent not granted custody of a minor child shall not be denied the right of access to the academic, medical, hospital or other health records of such minor child, unless otherwise ordered by the court for good cause shown."
8. Neither parent shall use corporeal punishment in disciplining the children.
9. The parties shall have an affirmative obligation to notify each other, through "Our Family Wizard" of all major medical, education, and religious decisions concerning all the children. Said notification shall be in a timely manner. Further, the parties shall send the other parent weekly updates relative to the children, including schedules of the children’s activities, appointments, etc. The program shall be set up within two weeks of this order, and the defendant shall be responsible for all costs associated with said program.
10. The matter will be reviewed in June of 2019, date to be determined, to assess: the family’s status; the children’s health and their progress, including school performance; the relationship between the children and each parent; how well the reunification efforts are progressing; and, the parties’ individual counseling efforts and the parties’ co-parenting relationship. The court may consider changing these orders at that time.
11. Pursuant to General Statutes § 46b-56(i), the parties shall engage in individual counseling to deal with the issues addressed herein, and the parties shall sign authorizations to Dr. Roeder and the GAL in order to coordinate treatment.
General Statutes § 46b-56(i) provides: "As part of a decision concerning custody or visitation, the court may order either parent or both of the parents and any child of such parents to participate in counseling or drug and alcohol screening, provided such participation is in the best interests of the child."
12. The GAL shall remain appointed and involved in the case, and will report back to the court in June. The defendant shall bear financial responsibility for the GAL’s fees.
13. Neither party shall make any disparaging or derogatory comments relative to the other parent in the presence of the children, nor shall they allow any third party, including the plaintiff’s mother, to do the same in the presence of the minor children.
14. The parties shall attend co-parenting therapy with a provider recommended by the GAL and/or Dr. Roeder. The defendant shall be financially responsible for said counseling. The parties shall attend regularly until discharged by the program.
15. The defendant shall be entitled to claim or benefit from any and all tax benefits associated with Danny, including tax credits, deductions, etc.
16. The parties shall attend the parenting education program established pursuant to General Statutes § 46b-69b within sixty days of this order; the costs shall be waived for the plaintiff.
17. Pursuant to General Statutes § 46b-11, the court orders the following exhibits sealed: Plaintiff’s Exhibits 1, 2, 3, 4 and 5; and Defendant’s Exhibit G.
See footnote 7 of this decision.
18. Notwithstanding the change in custody relative to Danny, there is to be no change to the financial orders in this case.
SO ORDERED.