Opinion
NNHFA054012782S.
12-20-2012
T. MASTRANGELO v. Gerald MASTRANGELO.
UNPUBLISHED OPINION
GOULD, J.
On or about December 12, 2007, the court entered judgment dissolving the marriage of the parties to the instant action, and adopted and incorporated the parties' co-parenting plan of that date into the judgment. Pursuant to the terms of the plan, the parties agreed to shared joint legal custody of their three minor children, Carly, Christopher and Anthony Mastrangelo, all born on July 1, 1999.
According to the terms of the aforementioned co-parenting plan, neither party would denigrate the other in the presence of the children, nor would either party permit any negative language/gestures or disrespect regarding the other parent by any third parties, so far as was possible. The plan also required that each parent would encourage the children to call the other parent.
The defendant, on or about July 21, 2011, filed a postjudgment citation for contempt, # 266, alleging that the plaintiff had willfully failed, neglected and refused to obey the orders entered on or about December 12, 2007, in that she has allegedly involved the children in adult issues, including but not limited to court involvement; and alleged that conflict between the parents has had a denigrating effect on the defendant's parent-child relationship. The defendant also alleged in that motion that the minor children's purported reasons for not visiting the defendant do not justify cessation of contact with the defendant, and that the defendant has allegedly been denied his parental rights since October 22, 2010, due to " the plaintiff's ... campaign of parental alienation which has perpetuated upon the defendant for a number of years."
The defendant, also on or about July 21, 2011, filed a second motion, # 267, to open and modify the December 12, 2007 judgment, alleging a " substantial change in circumstances surrounding the court ordered Co-Parenting Plan between the parties." In this motion, # 267, the defendant alleges that the " Plaintiff has used the final decision-making authority to alienate the Defendant from the minor children's lives in regard to medical, educational, religious and social development."
In that motion, the defendant further alleges that, at regular times since October 22, 2010, the minor children have refused to visit with the defendant, and, with the exception of one child on one night, have refused to spend an overnight visit with the defendant. Further, the defendant alleges that at regular times since December 21, 2010, the minor children have refused to speak with him. The defendant alleges that the plaintiff has encouraged and allowed this " destructive behavior" to continue, has used " manipulation and coercive behavior" in an effort to involve the children in the parents' custody dispute, and has " emotionally neglected" the psychological needs of the minor children by " alienating them from the Defendant."
The defendant has repeated the essential allegations of motion # 267 in a third motion, # 268, also dated and filed on or about July 21, 2011.
On or about March 27, 2012, the defendant, in support of the aforementioned motions, filed a " Notice of Expert, " for one Amy Baker, Ph.D. In the motion, the defendant disclosed that Dr. Baker was expected to testify regarding " parental alienation strategies and how they can and do arise in the absence of neglect by the alienating parent; " " how to distinguish alienation from estrangement; " " why alienation is a form of abuse; " " why courts should intervene to prevent long-term harm in cases of demonstrated alienation; " and " the relationship of alienation to the DSM and current research supporting the validity of parental alienation theory."
On or about July 18, 2012, the plaintiff filed a motion in limine challenging the admissibility and/or reliability of Dr. Baker's aforementioned disclosed opinions, pursuant to State v. Porter, 241 Conn. 57, 698 A.2d (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384 (1998), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
By agreement of the parties, a so-called " Porter hearing, " the application of which will be discussed below in this decision, was scheduled by the court.
On or about August 21, 2012, the plaintiff filed a " Disclosure of Expert Witness, " specifically one Benjamin D. Garber, Ph.D, who was expected to testify that " the reasoning or methodology underlying the ‘ Parental Alienation Syndrome’ is not reliable, valid or accepted by the relevant scientific community"; and " ‘ Parental Alienation Syndrome’ is an unscientific, unsupported, and unsupportable psychological ‘ condition’ posited by a minority of professionals."
During the pendency of the Porter hearing, the parties stipulated that the defendant could file an " Amended Notice of Expert Disclosure, " which was filed on December 6, 2012. In that amendment, the defendant disclosed that Dr. Baker would testify, in addition to the opinions disclosed on March 27, 2012, to " the relationship of parental alienation syndrome to the DSM and current research supporting the validity of parental alienation syndrome. " (Emphasis added.)
The parties also stipulated that Dr. Baker would be permitted to testify about parental alienation strategies at the hearing on the defendant's aforementioned motions.
Legal Analysis
As indicated above, the plaintiff objects to the admissibility and/or reliability of the defendant's expert, Dr. Baker's, opinions on what is commonly referred to as " parental alienation syndrome, " based on State v. Porter, supra.
The determination of admissibility of scientific evidence in Connecticut courts was, prior to Porter, an informal, somewhat scattered, process at best. As noted in Porter, supra, Connecticut courts " nominally" followed the federal standard for admissibility of scientific evidence as addressed in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). namely that that " general acceptance" in the scientific community was a precondition to such admissibility. Frye, supra, at 1014.
A closer examination of Connecticut precedents, though, reveals that on many occasions Connecticut courts actually declined to apply Frye when considering expert scientific testimony. State v. Hasan, 205 Conn. 485, 494, 534 A.2d 877 (1987), as cited in Porter, supra.
Further, it was held, prior to Porter, that " [i]f a duly qualified expert testifies that in his opinion [a scientific] test or device is reliable, but his opinion is not shared by the scientific community, either because it is novel and experimental or because they disagree with its bases, the court still has discretion to admit the evidence because competent proof is not rendered inadmissible merely by the fact that others take issue with it." State v. Ortiz, 198 Conn. 220, 227, 502 A.2d 400 (1985).
In Frye, the court observed that " just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Porter, supra, at 62. The Court then affirmed the trial court's exclusion of systolic blood pressure evidence because the blood pressure device had " not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." Porter, supra, at 63.
Subsequently, Frye and its " general acceptance" standard was expressly adopted by a number of courts. See, e.g., United States v. Alexander, 526 F.2d 161. (8th Cir.1975); Pulakis v. State, 476 P.2d 474 (Alaska 1970).
In 1993, however, the federal standard for the admissibility of scientific evidence changed as a result of the decision of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. In Daubert, the court held that rule 702 of the Federal Rules of Evidence, which was enacted in 1975, had superseded the Frye analysis. The court concluded that " [n]othing in the text of [rule 702] establishes ‘ general acceptance’ as an absolute." Porter, supra, at 63.
Instead, the Daubert court held that a federal trial court has a responsibility to determine, pursuant to Rule 702, whether the proffered evidence will " assist the trier of fact." This, the Daubert court concluded, entails a two-part inquiry. First, the court must determine whether or not the reasoning or methodology underlying the [scientific theory or technique in question] is scientifically valid. Second, it must then determine whether or not that reasoning or methodology can be applied to the facts in issue. In other words, before it may be admitted, the trial judge must find that the proffered scientific evidence is both reliable and relevant. Porter, supra, at 64.
More specifically, the threshold requirement for scientific evidence to be admissible under rule 702 is that the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted " in the methods and procedures of science." and is " more than subjective belief or unsupported speculation." This requirement " establishes a standard of evidentiary reliability." Porter, supra, quoting Daubert, at 64.
The Daubert court listed four nonexclusive factors for federal judges to consider in determining whether a particular theory or technique is based on scientific knowledge: (1) whether it can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, including the existence and maintenance of standards controlling the technique's operation; and (4) whether the technique is generally accepted in the relevant scientific community. Porter, supra, at 64-65.
The Daubert court emphasized, however, that the inquiry is a flexible one, noting that other factors " may well have merit to the extent that they focus on the reliability of evidence as ensured by the scientific validity of its underlying principles." Porter, at 64-65.
The Daubert court also noted that, in addition to the factors listed above, the purported scientific testimony must also be relevant to the issues of the instant case. Porter, at 65.
In Porter, Connecticut formally rejected the Frye analysis and, instead, adopted the Daubert standards for admissibility of scientific evidence. In doing so, the Porter court noted that a trial judge should, by one method or another, serve as a ‘ gatekeeper’ and make a preliminary assessment of the validity of scientific testimony before allowing the fact finder even to consider it. Porter, supra, at 73-76.
The Porter court went even further, though, adding that a trial judge should therefore deem scientific evidence inadmissible " only when the methodology underlying such evidence is sufficiently invalid to render the evidence incapable of helping the fact finder determine a fact in dispute ... (A) sufficient showing of validity is necessary for scientific evidence to be helpful. A general policy in favor of admission of helpful evidence, and a specific policy of requiring a showing of a certain level of validity before scientific testimony can properly be presented to a fact finder cannot be resolved by an absolute statement or rule. Instead, a case-by-case analysis will be necessary." Porter, supra, at 89-90.
The Porter court added that " under Daubert, trial judges are not required to make a determination of the ultimate scientific validity of any scientific propositions. Instead, they need only make a much more limited inquiry: whether sufficient indicia of legitimacy exist to support the conclusion that evidence derived from the principle may be ... considered by a fact finder at trial." Porter, supra, at 91.
The " Porter" Hearing
The Porter hearing in the instant matter was conducted over two sessions before the undersigned on September 11, 2012 and December 3, 2012. Both parties, as well as their minor children, were represented by counsel at the hearing. A guardian ad litem appointed on behalf of the minor children was also present.
Dr. Baker testified on September 11, 2012. She has a Ph.D in human development from Columbia University in 1989. She described her study as in the field of developmental psychology, which she testified is the study of children as they progress through their lives. She has a specialty in the social-emotional development of children. She is the former director of the Center for the Child in New York City and of the Children's Village in Dobbs Ferry, New York. Currently, she is the director of research at the Vincent J. Fontana Center for Child Protection in New York. She has been an adjunct professor at Teacher's College of Columbia University, Fordham University and the New School for Social Research.
Dr. Baker testified that " parental alienation" is the term used to describe children who become disaffected with a parent. She described it as a general term that has slightly different definitions. For that reason, according to her testimony, she focuses specifically on " parental alienation strategies, " which she defined as " the behaviors that a parent uses to effectuate (a) child's unjustified rejection of the other parent and " parental alienation syndrome, " which she testified " is the term used to describe (children) who ... are unjustifiably rejecting another parent." The strategies, she testified, can result in children becoming alienated and are " considered abusive in and of themselves ."
She further testified that the term " parental alienation syndrome" is used to " describe children who have been exposed to the strategies and then become alienated." She also testified that she has identified eight " behavioral manifestations of parental alienation syndrome" exhibited by children who, in her opinion, have been alienated from one parent. She testified that she was not retained to examine or study the parties or the minor children, specifically, in the instant matter. She defined the " syndrome" as " a collection of systems or behaviors that have a common ideology and represent a distinct psychological experience" that exists within a child.
She testified that she has published approximately 15 articles on the topic of parental alienation, the strategies, syndromes and their interrelationships. Dr. Baker testified that these articles have been peer reviewed. She also testified that she has written a book on the topics, and four of its chapters were also subjected to peer review. She has also conducted interviews of persons who self-report that they are alienated, and that efforts were made to determine the validity of those reports, either on their face or by concurrence, in which other studies were used to measure the claims of alienation.
Dr. Garber testified on December 3, 2012. He has a Ph.D. in child and clinical psychology from Pennsylvania State University and a bachelor's degree in child development and developmental psychology from the University of Michigan. He has provided clinical services to children, adults and families in a variety of positions. He is certified as a guardian ad litem and parenting coordinator in the state of New Hampshire. Dr. Garber is the author of six books on a variety of familial topics including, but not limited to, alienation. He has testified in contested custody cases in a number of jurisdictions.
Dr. Garber described " alienation" as an action or dynamic that occurs in relationships among people, and as a weapon within family conflict. He testified that it differs from " alienation syndrome, " which he said " suggests the presence of a disease or illness within an individual, " specifically the subject child or children. He further testified that the concept of " parental alienation syndrome" originated with the studies of Dr. Richard Gardner, who, according to Dr. Garber, " suggest(ed) that the behaviors he observed in children who are subjected to the dynamic (of alienation by one parent) took on an aspect of an illness or a syndrome within themselves."
He further testified that, in his opinion, while " parental alienation" exists, " parental alienation syndrome" does not exist. He testified that there is no data or collection of symptoms " which constitutes a syndrome."
Dr. Garber further stated that the purported " parental alienation syndrome" cannot be subjected to " falsifiability, " as required by Porter and Daubert, supra, because there are no diagnostic criteria that may be examined to either disqualify or falsify the diagnosis. He added that the " lack of falsifiability" is also present when the syndrome is diagnosed within a child or children based upon the mere allegations of a " rejected" parent that the " preferred" parent is abusive or neglectful, and the " preferred" parent denies such behavior.
In addition, Dr. Garber testified that calculation of an " error rate, " which is also required under the Porter and Daubert analysis, supra, is difficult or impossible to acknowledge or determine where, for the reasons stated above, the concept of the " syndrome" cannot be falsified, adding that " I would suggest that falsifiability is the first necessary step before error rate can be considered."
In a larger sense, Dr. Garber testified that a fatal flaw of the concept of the " syndrome" is that it " paints one parent as all good and the other parent as all bad ... (W)e end up pathologizing the child as if the child has an illness, and then we end up talking about the rejected parent as blameless and the aligned parent as the bad guy.
We know, both clinically and common sense wise, that ... there is never just a good guy, never just a bad guy ... that everybody participates ... and everyone has a role (in the dynamic), both the aligned parent, the rejected parent, and the child, " he added.
Dr. Garber also testified that the concept of " parental alienation syndrome" has not been met with general acceptance in the relevant professional community, yet another threshold requirement under Porter and Daubert, supra. He added that courts, including Connecticut, do not recognize the " syndrome" but " instead, (rely) on the actual dynamics of the entire family."
" Alienation ... exists and is real and is globally recognized, " he testified. Defining " alienation as a ‘ syndrome’ ... is a dangerous thing, which risks ... making the child into the person with the problem and missing the real dynamics that are at the root of the problem."
Discussion
Normally, when one contemplates the " science" referred to in the Porter and Daubert decisions, the mind conjures images of test tubes, beakers, white coats and laboratories, the crux of what we think of when we contemplate " science."
Indeed, Porter involved the admissibility of systolic blood pressure evidence, while Daubert dealt with the alleged affects of a pharmaceutical drug on birth defects. Put in another, perhaps more scholarly way, the " science of Porter and Daubert encompassed a search for reliable, ascertainable knowledge and explanations of the natural and physical senses of the universe." J.L. Heilbron, The Oxford Companion to the History of Modern Science New York: Oxford University Press (2003).
In the instant case, we are presented with " science" of a somewhat different array. Here, rather than seeking an explanation of what powers the universe and the forces within it, we are concerned with what has been described as the " social sciences, " sometimes referred to as " the study of human thought, behavior and society ... as an academic study." See, Hebe Vessuri, " Ethical Challenges for the Social Sciences on the Threshold of the 21st Century." Current Sociology 50, No. 1, 135-50 (January 2000).
Nonetheless, both Porter and Daubert are, obviously, products of late 20th century jurisprudence, and, as such, clearly embrace " social science" within the generic definition of " science."
Consequently, it is within this social scientific framework that the concept of " parental alienation" and the concept of " parental alienation syndrome, " while sharing some similar traits and observations and frequently used interchangeably, are seen as distinctly different in crucial degrees.
As both Dr. Baker and Dr. Garber testified, " parental alienation" focuses on the aligned parent, rejected parent and child or children's behavior, while " parental alienation syndrome" focuses solely on the child, or children's, behavior. Despite this distinction, some courts have blurred the concept, defining " parental alienation syndrome" as " a systematic programmed alienation of a child from one parent brought upon by the other parent." Ellis v. Ellis, 952 So.2d 982, 992; see also A.C.H. v. F.R.S., 247 S.W.3d 921, 926 n. 4 (Mo.App.2008).
The question presented by the instant hearing is whether the concept of " parental alienation syndrome" is a scientifically reliable theory as required by Porter, supra, adopting and interpreting Daubert, supra.
Initially, it should be observed that the concept of " parental alienation syndrome" is not recognized as a disorder by the medical or legal communities and Gardner's theory and related research have been extensively criticized by legal and mental health scholars for lacking scientific validity and reliability. See, Bernet, " Parental Alienation Disorder and DSM-V" . The American Journal of Family Therapy Vol. 36(5): 349-66 (2008). However, the separate but related concept of the estrangement of a child from a parent is recognized as a dynamic in some divorcing families. In addition, no professional association has recognized PAS as a relevant medical syndrome or mental disorder, and it is not listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders or the International Statistical Classification of Diseases and Related Health Problems of the World Health Organization. Id., generally, supra.
Although the concept has been soundly rejected in many legal and scientific arenas, as noted above, Connecticut has not affirmatively adjudicated the issue of whether parental alienation syndrome is a scientifically reliable theory. Eisenlohr v. Eisenlohr, 135 Conn.App. 337, 348, 43 A.3d 694, 701 (Conn.App., 2012), In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa App.1994). Connecticut courts have, however, expressly referred to and discussed the syndrome in numerous decisions, including Ruggiero v.. Ruggiero, 76 Conn.App. 338, 339 fn.1, 819 A.2d 864 (2003), where the Appellate Court applied the above distinction to the trial court's factual finding of parental alienation and parental alienation syndrome, the latter being an alleged psychiatric disorder not listed or set forth in the American Psychiatric Association's current Diagnostic and Statistical Manual (" DSM-IV") ."
In Ruggiero, supra, the plaintiff's claim concerning parental alienation dealt with the issue of the validity of a finding of parental alienation syndrome. The court did not address any potential mental health condition. " This opinion utilizes the court's factual conclusion that the plaintiff's activity as a parent alienated the defendant, and this court makes no decision concerning the validity of such a syndrome." See also Snyder v. Cedar, 2006 Ct.Sup. 3216, No. NNH CV010454296, Superior Court, Judicial District of New Haven at New Haven, 2006 Conn.Super. LEXIS 520 (Pittman, J., February 16, 2006); Coleman v. Coleman, 2004 Ct.Sup. 11232-a, No. FA 02-0174562, Superior Court, Judicial District of Middlesex, Regional Family Trial Docket at Middletown, 2004 Conn.Super. LEXIS 2147 (Munro, J., August 5, 2004); In re Katherine W., 2000 Ct.Sup. 13285, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Quinn, J., October 26, 2000).
The basis of much of the legal and academic rejection of the so-called " syndrome" has been based, as noted by Dr. Garber in his testimony in the instant hearing, on the observation that the so-called " syndrome" focuses solely on the behavior and actions of the child or children, as contrasted to the concept of " parental alienation, " which, instead, focuses on the behavior and actions of the aligned parent, rejected parent and the child or children. See, generally, Fidler and Bara, " Children Resisting Postseparation Contact With A Parent: Concepts, Controversies and Conundrums, " Family Court Review, Vol. 48., No. 1, January 2010. See also, Drozd and Olesen, " Is It Abuse, Alienation or Estrangement? A Decision Tree, " Journal of Child Custody, Vol. 1(3) (2004). This is the inherent flaw in substantiation of the scientific validity of the " syndrome" concept, according to Dr. Garber's testimony.
Crucially, what is apparent from these many studies is a general acceptance of the concept of " strategies" of alienation employed by an aligned parent against a rejected parent toward their child or children. Both Dr. Baker and Dr. Garber testified that these strategies are scientifically present and reliable, and thus pass the Porter and Daubert tests. Presumably for that very reason, the parties have stipulated that Dr. Baker may testify regarding those strategies.
Even if this court were to reject the overwhelming legal and scientific precedents and objections to the scientific validity of the so-called concept of " parental alienation syndrome, " expert testimony on the subject would still not be admissible because the testimony is irrelevant to the prosecution of the defendant's pending motions.
As noted from the testimony of both Dr. Baker and Dr. Garber, above, the analytical basis of, and one of the strongest objections to the scientific validity of, " parent alienation syndrome" is that, rather than encompassing a review of the actions of the aligned parent, estranged parent and the child or children, the so-called syndrome focuses solely on the behaviors or actions of the child or children.
As noted above, the defendant's various motions that are the subject of the proffer of Dr. Baker's testimony regarding the so-called " syndrome, " which resulted in the Porter hearing, allege actions, or inactions, of the plaintiff mother and the children, rather than simply the children. For that reason alone, testimony that admittedly focuses solely on the actions of the child or children would be, at best, incomplete, and therefore not be relevant.
" Evidence is admissible when it tends to establish a fact in issue or corroborate other direct evidence in the case ... as long as the evidence may reasonably be construed in such a manner that it would be relevant ... These concepts are as applicable to scientific testimony as to other types of evidence." Porter, supra, at 87-88.
For the foregoing reasons, the undersigned finds that the proffer of Dr. Baker's testimony regarding the concept of " parental alienation syndrome" does not meet the relevant standards under Porter, and is irrelevant to the defendant's allegations in his instant motions, and is therefore inadmissible.