Classic case of P.A.S.

[KWagner]

Hi, I'm new to this forum but have gotten a lot of info on the website in the past. My husband's former wife has completely alienated his two children and we need a professional to testify in court as to P.A.S. Any ideas on who we can contact? We live in Georgia. Thank you. The children are 15 (boy) and 13 (girl) and he hasn't had regular visitation in 2 years although he has joint physical custody. Now the kids say they hate him and don't want to visit. He's a wonderful man, we have a great attorney, but we could use some help.

[KWagner]

Hi, I'm new to this forum but have gotten a lot of info on the website in the past. My husband's former wife has completely alienated his two children and we need a professional to testify in court as to P.A.S. Any ideas on who we can contact? We live in Georgia. Thank you. The children are 15 (boy) and 13 (girl) and he hasn't had regular visitation in 2 years although he has joint physical custody. Now the kids say they hate him and don't want to visit. He's a wonderful man, we have a great attorney, but we could use some help.

[nosonew]

Took awhile, but I found it!  This should help your attorney:

 posts  
 
#192, "Keep Faith- Keep Fighting for your right- PAS"


           Hello ALL,
A friend sent me some info on a recent case involving PAS and denied court ordered parenting time. After reading the ruling, I could still feel the anguish this father must have felt time after time. Every time this father went for contempt action, the judge slapped the mother's hand and told her to comply. Even after several jail threats, the father still could not enjoy parenting as ordered.
This only goes to show, never give up hope. Always expect to be trampled. Fight, fight, fight for your right! Never, ever give up hope!

This case had striking similarities to some of the nutcases at the whacko board (dnet). Thanks to DADABC123 for passing this along from the Iowa Court of Appeals.

http://www.judicial.state.ia.us/appeals/opinions/20031126/03-0497.asp



Filed November 26, 2003



IN RE THE MARRIAGE OF MICHAEL DEAN MCCORD and CARLY CHRISTINE MCCORD



Upon the Petition of

MICHAEL DEAN MCCORD,

Petitioner-Appellee,



And Concerning

CARLY CHRISTINE MCCORD,

Respondent-Appellant.





Appeal from the Iowa District Court for Clay County, Patrick M. Carr, Judge.



Respondent-appellant appeals the modification of the divorce decree to transfer primary physical care to petitioner-appellee. AFFIRMED.





Jack Bjornstad of Bjornstad Law Office, Spirit Lake, for appellant.

Michael Houchins of Zenor & Houchins Law Office, Spencer, for appellee.



Heard by Sackett, C.J., and Huitink and Hecht, JJ.





SACKETT, C.J.

On February 26, 2003, the district court modified a dissolution decree to transfer primary physical care of Brittany Ann McCord born November 6, 1997, from her mother Carly McCord to her father Michael Dean McCord and to restrict Carly's visitation with the child until September 1, 2003. The district court found the modification justified because of Carly's continual refusal to cooperate with Michael in allowing him to exercise his court-ordered visitation and her attempts to alienate Brittany from her father. On appeal Carly contends (1) her actions were an appropriate reaction to Brittany's physical condition and report of activities in Michael's home following visits there; (2) she had a reasonable basis to believe Brittany's alleged reports of abuse; (3) experts testifying on Michael's behalf used suspect methodology; and (4) that to allow the modification would have a chilling affect on reporting child abuse. We affirm.

We review de novo. Iowa R. App. P. 6.4. Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties presently before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). We give weight to the trial court's findings of fact, but we are not bound by them. Iowa R. App. P. 6.14(6)(g). This is not an original custody determination. The question, therefore, is not which home is better, but the question is whether Michael has demonstrated he can offer the child superior care. See In re Marriage of Morton, 244 N.W.2d 819, 821 (Iowa 1976). Michael must show an ability to minister to the child's needs superior to Carly's. See In re Marriage of Ivins, 308 N.W.2d 75, 78 (Iowa 1981); Crary v. Curtis, 199 N.W.2d 319, 320 (Iowa 1972); In re Marriage of Gravatt, 371 N.W.2d 836, 840 (Iowa Ct. App. 1985). If both parents are found to be equally competent to minister to the children, custody should not be changed. In re Marriage of Smith, 491 N.W.2d 538, 541 (Iowa Ct. App. 1992). Courts are empowered to modify the custodial terms of a dissolution decree only when there has been a substantial change in circumstances since the time of the decree which were not contemplated by the court when the decree was entered, the change is more or less permanent, and it relates to the welfare of the child. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983); Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996). A parent seeking to change the physical care from the primary custodial parent to the petitioning parent has a heavy burden. See In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980); In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App. 1998).

Brittany's parents separated before she was five months old and divorced on October 12, 1998, before she was a year old. Her primary physical care was placed with Carly and Michael was provided visitation.

Problems with visitation began even before the dissolution was decreed. Michael filed for dissolution on February 5, 1998. On March 16, 1998, the parties stipulated Michael should have certain visitation and a temporary order issued accordingly. By April 29 Michael had filed an application to have Carly held in contempt for failing to honor Michael's visitation on three occasions. The matter came on for hearing on May 15 of that year and Michael's attorney advised the court the contempt action was filed to secure compliance with the visitation provisions; punishment of Carly was not sought. The court conducted a colloquy with the parties and determined that Carly committed herself to cooperate with the visits. The court found Michael's visitation had been interrupted but it should commence again, and ordered that the visitation in the earlier order should continue. By June 3 Michael had filed a second contempt application. The district court found Carly was in contempt and sentenced her to confinement of ten days, but allowed her to purge herself by complying with the temporary stipulation until the dissolution decree was filed.

A child custody evaluation was done by Steven B. Mayhew, Ph.D., ABPP. He prepared a report on July 29, 1998 recommending primary physical custody be placed with Carly with Michael having liberal visitation. Mayhew noted concern with Carly's past attempts to limit and restrict Michael from developing a relationship with Brittany. He did not recommend physical care with Michael at that time, advancing the opinion that if primary physical care were with Michael, it was likely his girlfriend Danelle would be the primary caretaker while Michael worked outside the home.

The parties finally were able to put their differences aside, and on October 6, 1998 they filed a stipulation agreeing to those matters necessary to finalize the dissolution. Included in the stipulation was a provision that the parties have joint custody and Carly would have primary physical care. Michael was to have such visitation as could be agreed upon, and if there were no agreement, then specific visitation was established until Brittany was two years old, at which time a different visitation schedule was provided. On October 12 the district court dissolved the marriage, adopting and approving all provisions of the stipulation.

On July 16, 1999 Michael filed a third application for contempt, again contending he had been denied visitation on specified dates. The matter came before the district court on August 5, 1999. The court noted that Mayhew, in his report in August of the prior year, had recommended that Carly participate in individual therapy and counseling. The court also found that while Carly had not scheduled the therapy and counseling, she exhibited a willingness to do so, and in consideration of her agreement to do so and Michael's agreement, the contempt matter was continued until December 20, 1999.

On December 20, 1999 the continued contempt hearing came before the court and Carly was found in willful and deliberate violation of the October 12, 1998 decree and was sentenced to serve fourteen days in the Clay County jail. Carly was given the opportunity the purge the contempt if she followed through with all visitations and did not deny Michael court-ordered visitation through June 20, 2000.

On April 11, 2000 Michael filed an application for modification of the custodial provisions of the decree. On September 14 and 15, 2000 the district court held a hearing on Michael's petition for modification. On January 18, 2001 the district court ruled on the modification. The court found that since the contempt order, apparently referring to the December 20, 1999 order, Carly had for the most part complied with the contempt order and that Michael failed to show sufficient interference with visitation or denial of visitation to show the required change of circumstances to justify a modification of the decree. The court in the ruling noted its displeasure with interference by Carly's mother.<1>

On May 10, 2002 Michael again filed an application seeking to have Carly found in contempt for failing to honor his visitation rights. Then on May 20, ten days later, he filed the second petition to modify the custodial provision of the decree.

On July 23, 2002 the district court considered the May 10, 2002 contempt application. The court noted a May 20 hearing on the matter had been continued several times, and during such period attorney Shannon Sandy had been appointed guardian ad litem for Brittany.

By this time Michael had remarried and adopted the two female children of his current wife. It is unclear when during the course of these proceedings Michael adopted those two children, but when he did they became Brittany's half-sisters and will be referred to as her half-sisters during the balance of this opinion.

Michael received a telephone call from Carly prior to a scheduled April 25, 2002 visit contending that on the prior visit to Michael's home, Brittany had been sexually abused by her half-sisters. Michael talked to the two girls, then aged eight and nine, and they denied any abuse. Michael appeared for the April 25 visit and was denied his daughter. Carly contended she withheld the visitation because of the alleged abuse. A child abuse investigation followed and the abuse was not confirmed. The child protection worker concluded there was no physical evidence the abuse had occurred. At this point the Iowa Department of Human Services recommended the visits be continued as set forth in the court order. At a subsequent hearing the district court held Carly's decision to withhold this visit was reasonable under the circumstances because of a valid concern for the safety of Brittany and was not in willful disobedience of the order of the court. Apparently Carly had continued to withhold visits after the Department of Human Services investigation was completed and the court found this presented a closer question, but giving Carly the benefit of the doubt, did not hold her in contempt. The court said Carly was expected to immediately resume the October 12, 1998 visitation schedule.

On August 12, 2002 Michael filed another application to have Carly held in contempt for withholding visitation including a visit July 28, 2002, five days after the district court entered the above order. On August 26, 2002 this application came before the court. Again the district court found Carly in contempt. She was sentenced to ten days confinement. The court noted that the modification action was set for hearing on October 23, 2002, and allowed her to purge herself by complying with the ordered visitation until such time as the modification decree was filed. The court further ordered mediation for Carly and Michael and counseling for the child with Rhonda Jager-Pippy.

Michael had visitation with Brittany on Labor Day weekend following the August 26, 2002 order. Immediately following Brittany's return from Michael's weekend visit Carly reported to the Department of Human Services that she suspected Brittany was sexually abused by her two half-sisters in Michael's home. Carly reported the sisters had injured Brittany's vaginal area. An examination revealed no physical evidence to support the claim.

Michael responded to Carly's report by filing a report on September 4, 2002 claiming actions by Carly and Carly's mother towards Brittany were in the form of a mental injury.

On November 25, 2002 the guardian ad litem filed a written report noting that the attorneys for the parties had stipulated it be prepared. The report indicated the guardian ad litem had interviewed some twenty-eight people and recommended physical care and control be transferred to Michael with Carly being granted supervised visitation.

Michael's second application for modification came on for hearing on November 26 and 27 and December 13 of 2002. The parties appeared with their attorneys; Shannon Sandy appeared as guardian ad litem for the child. The district court heard considerable testimony, and on February 26, 2003 modified the dissolution decree. The court reviewed the lengthy history of the case including the contempt findings against Carly and the fact that both reports of child abuse she made concerning alleged sexual abuse by Brittany's half-sisters were unfounded. The court noted the guardian ad litem recommended that custodial care be changed.

The court found troubling a report of Sandra Pelzer, a licensed independent social worker, who was requested by a child abuse investigator to do an evaluation. The court found that after extensive investigation and interviews with the parents, preschool teacher, and guardian ad litem, and observation of Brittany, Pelzer found Brittany showed an anxious pattern of attachment to Carly, which displayed itself as extreme distress in response to separation from a parent, by overly dependant, aloof, and resistant behavior in response to that parent's attempts to help nurture. The court further noted that Pelzer concluded there were many indicators of the sexual-allegations-in-divorce syndrome and the parental-alienation syndrome present and recommended a change in custody.

The court noted that Jager-Pippy, a licensed independent social worker who was ordered to counsel Brittany, had four sessions with Brittany and observed Brittany to be almost theatrical in presenting the event of abuse from the girls. The court found that Jager-Pippy had grave concerns about the repeated and unsubstantiated allegations made by Carly and her mother and noted the family situation fits the criteria for the most severe form of parental-alienation syndrome. The court noted Jager-Pippy recommended custody be changed as soon as possible and that therapy continue for Brittany and contact with her mother and grandmother be monitored and supervised.

The court also noted that the Department of Human Services child protection worker who testified was of the opinion neither Michael nor members of his family had abused Brittany and expressed concerns about Michael ever having a relationship with Brittany if she remained with Carly.

The court went on to find that considerable testimony tended to illuminate and support the impressions offered by the professionals. The court concluded the evidence of the professionals against the background was "clear, credible, and alarming."

In observing Michael as a witness, the court found he appeared sincere and consistent in his efforts to have secure visitation with Brittany. The court noted Michael expressed frustration with the thwarted visitation and the need to respond to abuse allegations but did not appreciate the seriousness of Brittany's situation until receiving Jager-Pippy's report shortly before trial.

The court noted Carly said she would work to promote Michael's role in Brittany's life, but was asked several times if she would do so and qualified her answers by saying she would keep Brittany safe. The court went on to conclude that though Carly has frequently been cautioned to provide Michael visitations and knows what she is to do, she lacks the ability to foster any reasonable paternal relationship for Brittany. The court further found credible evidence suggested that by indirect action Carly and her mother foster or seek to foster fear of Michael on Brittany's part. The court concluded Michael had met his burden of proof for modification and ordered the decree modified to transfer primary physical care to Michael. The court limited Carly's visits to supervised visits until September 1, 2003, and then ordered reasonable and liberal visitation as the parties may agree and reasonable specified visitation if the parties could not agree.

We first address Carly's claim her actions were an appropriate reaction to Brittany's physical condition and report of activities in Michael's home following visits there. Carly contends she was justified in withholding visits because she was concerned that Carly was being abused.

We agree with Carly that a parent who has evidence another parent has committed abuse or allowed abuse to occur in his or her home has an obligation to report the abuse to the Department of Human Services. However, this issue of Carly withholding visits because she allegedly believed Brittany was sexually abused in Michael's home was addressed in one of the numerous contempt proceedings. The district court did not find Carly in contempt for withholding visits when she had a reasonable belief that Brittany had been sexually abused and Brittany's doctor reported the abuse to the Department of Human Services. This finding was not appealed. In our de novo review we give no consideration to the fact Carly withheld Michael's visits on these two occasions. Nor do we find that the district court's decision relies on the withholding of these two visits in reaching its decision. We find no reason to reverse on this issue.

Carly next contends she had a reasonable basis to believe Brittany's alleged reports. Carly testified that after the September 2002 visit Brittany returned from Michael's home and when asked about going to the bathroom she said she could not because her crotch hurt, and later in giving Brittany a bath she noticed redness that she passed off as a yeast infection or not being wiped well enough. Carly said she left Brittany in the tub and when she went back into the bathroom Brittany said her crotch hurt because her half-sisters had poked a pencil in her crotch. Carly said she believed her daughter.

Following the report Carly took Brittany to the emergency room at the Spencer Hospital where the child was seen by Darrel Forslund, M.D. The doctor examined the child, took the history Carly gave, and made an assessment that there were genital changes consistent with some type of external irritation. The doctor's notes indicated the findings on the labia majora did not comport with the mechanism she indicated "however the injury in the introital, the discharge could be consistent with that." The doctor, not Carly, referred the incident to the Department of Human Services.

Brittany was interviewed and had a physical examination at the Child Advocacy Center in Sioux City, Iowa. The physical examination did not support the alleged report nor did it necessarily disprove it. The guardian ad litem reported Brittany told the workers in Sioux City that her half-sisters said they were going to get scissors to get that little thing in her crotch. The guardian ad litem also reported that Brittany has said her mother spanked her, her dad spanked her with a sharp spoon, someone poked her crotch with a pencil at her mother's house, and that she dreamed these things. Brittany told the guardian ad litem her mother told her to say her father poked her in the crotch with a pencil and that it was an accident. The guardian ad litem also indicated a report by Brittany that her half-sisters had pushed her off a swing was not true, as the guardian ad litem had the child in her sight during the period it was alleged to have happened.

Carly correctly argues that Ann Hess, a therapist with the Seasons Center in Spencer who counseled with Brittany nearly a dozen times, believed the abuse happened. The guardian ad litem pointed out that Hess was told Brittany was bleeding profusely from her vagina as a result of sexual abuse and that Brittany's wrists were bruised. The guardian ad litem found no medical evidence to support either statement.

Carly is correct in her argument that a mother should give credence to a statement her four-year-old daughter makes that she has been poked in the vagina with a pencil. However, even assuming Brittany made the statement to her mother, events subsequent with Carly reporting bleeding from Brittany's vagina where there was none, Brittany's numerous inconsistent statements about how and if the incident happened, and Brittany's claim that her mother told her to say her father did it, reflect, among other things, on the credibility of Carly's rendition of the events that triggered the report. We find no reason to reverse on this ground.

Carly next contends that experts testifying in Michael's behalf used suspect methodology. She points to the opinions rendered by Sandra Pelzer and Rhonda Jager-Pippy. Carly first criticizes Pelzer's opinions that Carly overacted to the pencil report. She points out that Pelzer only met with her and Brittany for an hour. Pelzer found Brittany had "unusual behaviors typically seen in children with psychiatric disorders." Having made that diagnosis, Carly criticizes Pelzer for recommending a transfer of custody to see how the social and emotional symptoms play out and if they get better or worse. Carly contends such a recommendation is contrary to established law that custody should be quickly fixed and only modified for the most compelling reasons, citing In re Marriage of Downing, 432 N.W. 2d 692 (Iowa Ct. App. 1988). We agree with Carly's basic premise that children should not be moved just to see how it works. However, we, as did the district court, do not look at Pelzer's testimony in isolation but weigh her opinions with the other testimony presented.

Carly next challenges Jager-Pippy's diagnosis of parental-alienation syndrome. Carly contends Jager-Pippy did not interview her concerning the syndrome nor did she interview Carly's mother, who spends a good deal of time with the child.

We have not passed upon the issue of whether parental-alienation syndrome is a reliable theory. See In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct. App. 1994). We find it unnecessary to do so now. Rather, we look at the evidence introduced and draw our own conclusion. See id. Because this is a de novo review, we look only at the evidence we deem admissible. Id. We consider the opinions of all the experts as we do the other testimony. We give opinion testimony the weight we consider it deserves after considering, among other things, the expert's education, experience, familiarity with the case, reasons given for the opinion, and interest, if any, in the case. See Rosenfeld, 524 N.W. 2d at 215; In re Marriage of Scheffert, 492 N.W.2d 203, 205 (Iowa Ct. App. 1992). We find no reason to reverse on this ground.

There is compelling evidence that Carly has engaged in a course of conduct seeking to remove Michael's presence from Brittany's life. While we do not necessarily believe it is intentional, we do believe she is unable to do otherwise. Iowa courts do not tolerate hostility exhibited by one parent toward the other. In Rosenfeld, we addressed a situation where each parent sought to put the other parent in an unfavorable light and considered it a factor in modifying a custody award. Rosenfeld, 524 N.W. 2d at 215; see also In re Marriage of Udelhofen, 444 N.W.2d 473, 474-76 (Iowa 1989); In re Marriage of Leyda, 355 N.W.2d 862, 865-67 (Iowa 1984); In re Marriage of Wedemeyer, 475 N.W.2d 657, 659-60 (Iowa Ct. App. 1991).

Carly's attempts to distinguish these cases from the situation here is unpersuasive. We find her conduct as disturbing and devious as those cases where custody was modified because of one parent's behavior.

Carly next contends that to allow the modification would have a chilling affect on reporting child abuse. There is no basis to this argument. The Department of Human Services acted appropriately in this case. They took the reports of both parents and made extensive investigations. We will not hold the fact a parent makes a report of alleged child abuse to the Department of Human Services based on some credible evidence against the reporting parent, even if it is returned as unfounded.

In our ultimate assessment of this appeal we recognize that both Carly and Michael have adequate homes for Brittany. We do, however, have some concern that a modification of the decree requires Carly to move from a home where she has been the only child and where she receives extensive attention from her grandmother. In Michael's home she will be in a situation of competing for attention with three other children, her two half-sisters and a two-year-old half-brother born to Michael and his wife.

Yet Brittany has suffered serious emotional damage as a result of her mother's posturing. Carly has thwarted Michael's attempts to maintain a relationship with his daughter. We recognize there are situations where one parent will seek to put the other parent in an unfavorable light. Rosenfeld, 524 N.W.2d at 515. Some cases are slight and are to be expected in our less than perfect society. Id. Some cases are serious and should not be tolerated. Id. This is such a case. The district court judge has carefully considered the case and, giving the required deference to his credibility findings, we find no reason not to affirm.

AFFIRMED.





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<1> The parties' disagreements are not limited to custodial issues. There were several issues on child support and on February 28, 2002, Michael filed yet another application for contempt seeking an IRS form 8332 from Carly that she was ordered to provide.


 
 
 

[KWagner]

Thank you for your reply. I am forwarding it to our attorney. I have located 2 therapists in the Atlanta area who specialize in Parental Alienation, but look forward to any additional advice or referrals. Thanks again!