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concluding an "inherent conflict of interest" existed where the child's therapist, acting as an advocate for the child, believed when deciding whether the father could exercise visitation "that only he could resolve the visitation issue"—not any other therapist
Summary of this case from In re L.C.Opinion
No. 3-187 / 02-1326
Filed May 14, 2003
Appeal from the Iowa District Court for Webster County, Ronald H. Schechtman, Judge.
A mother appeals the district court's modification of the terms of the father's visitation with their daughter. AFFIRMED.
Dan McGrevey, Fort Dodge, for appellant.
R. Thomas Price, Price Pearson, Fort Dodge, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
The district court modified a dissolution decree to allow for visitation between a father and his daughter. The mother appeals. We agree with the district court that the original decree's non-visitation provision is inconsistent with the court's award of joint custody and with the psychiatric testimony concerning the father. Accordingly, we affirm the modification ruling as well as the district court's implementation plan.
I. Background Facts and Proceedings
Brian and Amy Long are the divorced parents of McKenzie, born in 1995. Shortly before the dissolution action was filed, Amy accused Brian of sexually abusing their daughter. After the action was filed, the parties entered into a stipulation concerning custody and visitation. They agreed they would have joint custody of McKenzie, with Amy assuming physical care. They further agreed to allow the child's therapist, Thomas Follett, to determine whether Brian should have any visitation with the child. Finally, the parties agreed Brian's sister Kristi could exercise visitation with McKenzie. The district court approved the stipulation and signed a dissolution decree.
The provision stated:
Any and all visitation Brian has with McKenzie shall be for the present and until further order of the Court on written agreement of the parties determined by Thomas Follett of Catholic Social Services. Brian's sister, [Kristi] Williams, shall be entitled to have access to McKenzie for visitation on alternate weekends from Saturday at 8 a.m. until Sunday at 6 p.m. commencing the Saturday of November 13, 1999, and on alternating weekends thereafter. Visitations over holidays to be reasonably determined by Amy and [Kristi]. The Court shall retain its jurisdiction to review this matter on the application of either party.
Two months after the decree was entered, Amy applied to modify the visitation provision. She alleged visitation with Brian's sister was causing McKenzie psychological harm. Following a hearing, the district court suspended visitation with Brian's sister and her family "until such time as Mr. Follett determines it in the best interests and without risk to McKenzie."
Brian moved to reconsider the ruling. He sought an order requiring Follett to file a report with the court to apprise the parties of the status of McKenzie's treatment and whether visitation with Kristi and her family could resume. The court granted the motion. Follett did not file his report within the court-prescribed time frames, but later sent letters to the court recommending against visitation between McKenzie and her father's family.
Brian filed his own modification application, seeking to establish visitation with McKenzie. The district court granted the application. The court struck the visitation provision in the original decree and substituted a detailed and graded schedule for counseling, supervised visitation and, ultimately, unsupervised visitation without overnight stays.
Amy filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) for expanded findings and conclusions. The court overruled the motion and this appeal followed.
II. Substantial Change of Circumstances
Amy preliminarily contends Brian did not satisfy his burden of proof. To make a case for modification of a visitation provision, an applicant must show a change of circumstances since the initial decree. In re Marriage of Holub, 584 N.W.2d 731, 733 (Iowa Ct.App. 1998). The showing is less than would be required to change a physical care arrangement. Id.
On our de novo review, we believe Brian satisfied this standard. Following the court's ruling on Amy's modification application, Brian sought and obtained treatment from two psychiatrists. The first, Dr. Trahan, opined that Brian was "genuinely concerned" with McKenzie's welfare. He stated Brian did not fit the profile of a person who would sexually abuse his child and he saw no reason to deny Brian visitation. The second psychiatrist, Dr. Dodd, similarly opined that he saw nothing to indicate Brian viewed his daughter as a sexual object. He noted Brian appeared "to have a well formed conscience" and stated Brian would "probably work conscientiously" to establish a meaningful relationship with his daughter.
Contrary to Amy's assertion, this psychiatric testimony went to the heart of the case. Although Brian continued to deny he committed sexual abuse, his denial did not prevent the psychiatrists from evaluating his credibility and proclivity to commit sexual abuse and from opining on the need for visitation. As the district court stated,
[t]he professionals from Ames, who have impressive credentials, have each advised the Court that Brian can be an effective parent with some additional intervention by trained counselors. The Court concludes that Brian should be given that chance and McKenzie should be given that chance to know and associate with her biological father.
We believe the court's conclusion that visitation was warranted is not only mandated by the facts but by the law. The original decree provided for joint custody but no visitation until the child therapist allowed it. As the district court pointed out, these two outcomes were "completely dichotomous." See In re Marriage of Krone, 530 N.W.2d 468, 452 (Iowa Ct.App. 1995) (stating court should order such visitation as will ensure a child the opportunity for maximum continuing physical and emotional contact with the noncustodial parent); In re Marriage of Fortelka, 425 N.W.2d 671, 672 (Iowa Ct.App. 1988) (stating "[p]arents in accepting an award of joint custody accept a responsibility to communicate with each other and to support the other parent's relationship with the child.") In light of the psychiatrists' testimony that there was no sound reason for denying all visitation, the district court acted equitably in eliminating this dichotomy. We affirm its conclusion that Brian established a change in circumstances warranting modification of the visitation portion of the decree.
III. Visitation Plan
Amy next contends the district court's plan for implementation of visitation was flawed in a number of respects. We will address each of her challenges.
A. Treatment by Follett. In evaluating the evidence, the district court found "suspect" Follett's stated belief that only he could resolve the visitation issue. The court stated there were other counselors who would be able to "take a fresh look at this whole situation and do it on a more even-handed professional basis." The court ordered that "intervention by the previous counselor with McKenzie should be terminated." In its Rule 1.904 ruling, the court reiterated, "[i]t seems pretty clear that Follett is not to counsel the child as a part of this process."
Amy takes issue with this aspect of the court's ruling. She contends the court's orders prevent her from employing Follett as a counselor for her child. We do not read the orders that broadly. In context, the court's rulings only prevent Follett from deciding whether Brian can exercise visitation. The rulings do not prevent Follett from counseling McKenzie. This is made clear in the following portion of the court's Rule 1.904 ruling: "Follett's designation and authority was contained in the "Visitation" paragraph of the dissolution decree. The present modification order strikes that paragraph." (Emphasis in original). The stricken paragraph did not address Follett's counseling of McKenzie but only his power to determine the extent of Brian's visitation rights.
It is clear, therefore, that the court's concern was with Follett's role in the visitation determination. This concern was well-founded. By his own admission, Follett was acting as an advocate for McKenzie. In this capacity, he testified that he believed there should be no contact between McKenzie and Brian unless initiated by Amy. He further insisted any visitation occur "especially and only with my input." While we do not minimize his concerns regarding McKenzie's welfare, it is precisely these concerns that preclude him from effectively brokering a visitation arrangement. As Dr. Trahan noted, Follett's role as the child's therapist would create "an inherent conflict of interest" were he to also serve as facilitator of visitation between Brian and McKenzie. He stated, "[t]he child needs a therapeutic ally regardless of what occurred, but I think that having someone who is fully independent, sees the child and the parent working together, would be the most appropriate thing." Dr. Dodd similarly testified:
I think there probably is a highly emotionalized relationship between Brian and this individual that I don't think he knows on a first hand basis, but I think it would probably work better if that kind of baggage was not carried into the relationship. I think that whoever deals with the reintegration needs to be familiar with all the particulars of the case. But it would be a disadvantage to them to have an already strained relationship.
In light of this evidence, we conclude the court acted equitably in curtailing Follett's role in the visitation process.
B. Consequences of Failing to Comply with Treatment Order. Amy next contends the district court should have provided that visitation would be curtailed if Brian failed to obtain counseling as ordered. In its Rule 1.904 ruling, the court pointed out that if Brian indeed failed to obtain counseling as ordered, Amy would be free to file a contempt action. We agree this is the appropriate remedy to rectify willful noncompliance with the court's order. In re Marriage of Wegner, 461 N.W.2d 351, 353-54 (Iowa Ct.App. 1990).
C. Information Sharing. Amy asks that we order Brian's future counselors to obtain information from Follett. In response to this request, the district court stated, "That professional can do so if he/she wishes. He/she may not choose to do so as this Court has already found that Follett's intervention in this matter was `suspect' and not `even-handed.'" We see no reason to reverse or modify this portion of the court's ruling.
D. Suspension of Visitation if Deemed Harmful. Amy next contends the district court should have provided that visitation would be suspended if deemed harmful by the new counselors. The district court noted that formal reviews are not the norm in this type of proceeding. We agree. Amy's recourse should she wish further review of the visitation issue is to file another modification application. In re Marriage of Fite, 485 N.W.2d 662, 664 (Iowa 1992) (holding court should refrain from formal oversight over visitation).
E. Waiver of Privilege. Amy contends the district court should have ordered Brian to waive privilege to his mental health records. The district court declined to do so, citing the confidentiality of these records. We agree with the court's ruling. SeeIowa Code § 622.10(2) (2001). Should ongoing visitation become an issue, the statute as well as our jurisprudence authorize disclosure of the records.
F. Removal of Brian's Sister as Supervisor. The district court ordered the parties to agree on a supervisor of visitation and stated, if not agreed to, Brian's sister would be acceptable. Amy notes that this portion of the ruling is inconsistent with the court's earlier ruling suspending visitation between McKenzie and Kristi until such time as Follett determined such visitation was in McKenzie's best interests. We conclude the court eliminated the inconsistency by removing Follett as an arbiter of visitation. Additionally, we decline to modify this aspect of the visitation plan, in light of the court's provision for an alternate supervisor approved by both parties.
IV. Trial and Appellate Attorney Fees
Amy contends she should receive trial and appellate attorney fees. An award at both levels is discretionary. Krone, 530 N.W.2d at 452. We are not persuaded by Amy's claim that she has been forced to defend frivolous litigation. Accordingly, we affirm the district court's denial of an attorney fee award and decline to order Brian to pay a portion of her appellate attorney fees.