O’Malley v. O’Malley

 

IN THE SUPREME COURT OF OHIO

VICKI   M. O’MALLEYAppellant,v. 

PATRICK   J. O’MALLEY

 

Appellee.

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Case   No. ______________On   Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District

 

Court   of Appeals Case No. CA-12-098708

 

 

 

 

MEMORANDUM IN SUPPORT OF JURISDICTION of amicI curiae

ACTION OHIO Coalition For Battered Women,

Ohio NOW Education and Legal Fund,

Professor Mike Brigner, JD, and

DOMESTIC VIOLENCE Legal Empowerment and Appeals Project

IN SUPPORT OF APPELLANT

 

January 10, 2014

Brian Schick1516 Sunview RoadLyndhurst, Ohio 44077brilliantchic@operamail.comAttorney for Appellant

 

Margaret Metzinger

CLIMACO, WILCOX,   THURMAN & DARAY, L.L.C.

55 Public Square,   Suite 1950

Cleveland, OH 44113

mmmetz@climacolaw.com

Attorney for Appellee

 

Adam Thurman

22021 Brookpark Road,   Suite 110

Cleveland, OH 44126

adam@adamthurmanlaw.com

Attorney for Guardian ad Litem Sandra McPherson

Georgia E. Yanchar (#0071458)CALFEE, HALTER & GRISWOLD LLPThe Calfee Building1405 East Sixth Street

Cleveland, OH  44114

 

Steven Bernstein (pro hac vice pending)

GOODWIN PROCTER LLP

The New York Times Building

620 Eighth Avenue

New York, NY 10018

 

Hong-An Vu (pro hac vice   pending)

GOODWIN PROCTER LLP

Three Embarcadero Center,   24th Floor

San Francisco, CA 94111

 

Counsel   for Amici Curiae

IN THE SUPREME COURT OF OHIO

 

TABLE OF CONTENTS

TABLE OF CONTENTS. ii

THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION AND CONCERNS A MATTER OF GREAT PUBLIC OR GENERAL INTEREST.. 1

STATEMENT OF THE CASE AND FACTS. 3

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW… 5

Proposition of Law: Denial of a person, under the age of majority, the right to counsel and to participate actively in trial proceedings to which they are a party, is a violation of that person’s rights to equal protection and due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution, Section 2, Article I, Ohio Constitution and Section 16, Article I, Ohio Constitution. 5

II.        THE USE OF ALIENATION LABELING IN CUSTODY LITIGATION TO DENY A PARENT’S ABUSE HAS BEEN WIDELY REJECTED AS SCIENTIFICALLY INVALID. 6

A.                    PAS Has Been Scientifically Discredited and Found Inadmissible. 6

B.                    “Parental Alienation” – Without the Syndrome – Is Also Scientifically Invalid When Used to Defeat Abuse Claims. 8

III.      Parental Alienation Theory Permeated This Proceeding and Drove the Trial Court’s Findings and Decision. 10

IV.       The Trial Court’s Adoption of Parental Alienation Harmed the children. 14

CONCLUSION.. 17

V.        CERTIFICATE OF SERVICE.. 19

THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION AND CONCERNS A MATTER OF GREAT PUBLIC OR GENERAL INTEREST

Family courts in Ohio and around the country are increasingly being criticized for depriving children in custody disputes of their right to be heard and to be safe, by misapplying the controversial label of “parental alienation” (“PA”) or “parental alienation syndrome,”  (“PAS”) to presumptively discredit children’s reports of paternal abuse.  Although the scientific community has roundly rejected PAS as a viable theory and the National Council of Juvenile and Family Court Judges has repeatedly cautioned against the misuse of PA to deny abuse allegations in custody litigation, abusive parents continue to use, and courts continue to apply, alienation labels to reject evidence of abuse and remove children from their mothers.  Here, the trial court abused its discretion by using the paternally-oriented theory of alienation to the profound detriment of the parties’ children:

  • In the Domestic Relations matter,[1] the court violated the Children’s[2] Fourteenth Amendment and Ohio Constitutional right to due process by refusing to allow the Children their own counsel who would advocate for their wishes, as opposed to the Guardian Ad Litem (“GAL”), who did not represent their wishes;
  • In the Juvenile matter, where the Children did have counsel, the court violated their due process rights by denying their lawyer access to them during the legal proceedings, thereby depriving them of their right to participate in the proceedings;
  • The court shockingly treated as legally irrelevant Mr. O’Malley’s conviction for possession of obscene photographs and text stories of sexual relations between children and adults and animals[3]; and
  • The court disregarded the evidence of Mr. O’Malley’s child abuse, the Children’s terror toward their father, and at least Patrick’s psychological trauma from exposure to Mr. O’Malley.

The remarkable result of these errors was that Mr. O’Malley—a convicted felon federally prosecuted for importation of obscenity and an accused abuser whose children undisputedly feared being with him—received sole custody of the Children.  By contrast, Ms. O’Malley, the children’s sole past caretaker, who has no record of any kind of sexual deviance, criminal behavior, or harm to children or anyone, has been deprived of all legal right to see her children for over seven months, and has been permitted by their father to see them for only seventeen hours over the last sixteen months.[4]  The Eighth Appellate District improvidently upheld the trial court’s decision.

Amici are organizations with expertise in domestic violence, child abuse, and custody litigation. [5]  They and their client populations have an interest in protecting custody litigants’ and children’s constitutional rights and preventing the misuse of alienation theory as a weapon to silence children’s complaints of abuse in custody battles.  Should the Court decline review, this case – which has been widely reported – will give a green light to custody and juvenile courts to ignore the rights of children to participate in matters that concern them, while silencing substantial parental abuse concerns and placing children at risk.

STATEMENT OF THE CASE AND FACTS

Amici adopt Appellant’s statement of facts and statement of the case, and provide the following summary of the key, undisputed facts:

  • The trial court found that  Ms. O’Malley ha a very strong bond with the Children.  (See T.D. 559, 2.)
  • Ms. O’Malley has no convictions of any kind and no allegations of violence or abuse towards the Children or anyone else have ever been asserted against her.
  • Mr. O’Malley has a felony conviction for obscenity for which he served over a year in federal prison.  This conviction was based on his possession of extensive obscene materials demonstrating his interest in child molestation and bestiality.  United States Sentencing Memorandum at 3, United States v. O’Malley, No. 1:08 CR 23 (N.D. Ohio 2008).
  • The Children have told several medical professionals and testified about incidents of Mr. O’Malley’s abusive behavior towards them and Ms. O’Malley that included
    • Mr. O’Malley attempting to run over the children with his car (See T.D. 559, 7; Chldn. Intv. Tr. Vol. II, 9:6-11-11:6)
    •  Mr. O’Malley hitting [how old?] P. O’Malley and locking him in a bathroom (see Chldn. Intv. Tr. Vol. I, 7:13-8:22; Chldn. Intv. Tr. Vol. II, 12:5-10);
    •  Mr. O’Malley hitting P. O’Malley causing him to have a concussion (see T.D. 559, at 8, 31; Chldn. Intv. Tr. Vol. 1, 41:2-12; 26:25-27:6; 29:6-7);
    • P. O’Malley returning homefrom a visit with his father with sore ribs and a strained wrist, which he reported were caused by Mr. O’Malley using a martial arts move against him. (T.D. 559, 7); and
    • Mr. O’Malley [harming] [needs more concreteness or a quote] Ms. O’Malley (T.D. 559, 38) (quoting letter from therapist submitted as evidence).
    • The Children’s reports of domestic abuse were validated by _____doctors and other health professionals.  (See, e.g., T.D. 559, 8 (trial court finding that a doctor had diagnosed Patrick with a concussion after assault by his father)).
    • Patrick has been diagnosed by at least two experts and treated for posttraumatic stress disorder relating to his experiences with father.  (T.D. 559, 42 (quoting a report of Dr. Kristine Rork, Ph.D.); id. at 53 (referring to testimony of Dr. Joyana Silberg).)
    • The Children have continually expressed their great fear of their father and anxiety about having to spend time with him to several medical professionals and others.  (E.g., T.D. 477, 13, 19-20, 28; T.D. 559, 36-37; T.D. 513: 11-22-12:21.)
    • In spite of her knowledge of the children’s allegations of abuse, the GAL “presumed” that no abuse existed, and instead labeled the mother as “alienating,” based in part on the Children’s misbehavior towards their father. (T.D. 559, 28.)
    • Mr. O’Malley communicated to the Children’s therapists and testified that the alleged abuse did not exist and that the allegations of abuse were merely part of Ms. O’Malley’s campaign to alienate him from the Children. (See e.g. T.D. 559, 14-20, 40.)

Adopting and endorsing Mr. O’Malley’s claim of “parental alienation,” the Court decided to ignore Mr. O’Malley’s obscenity conviction as “not relevant” to the children’s best interests, and disregarded the evidence of abuse proffered by Ms. O’Malley and the Children.  The Court simply treated the abuse allegations as concoctions by the mother and presumptively brainwashed children to use against Mr. O’Malley.  (E.g., T.D. 559, 2, 74-75).  It did so in part because the children behaved badly to their father and to various professionals who were employed to ensure the children continued to have a relationship with their father.  (See T.D. 559, 31, 35, 38.)  This conclusory presumption that the children’s bad behavior was the product of “alienation” rather than their own hostility to a father who terrorized them, resulted in the complete silencing of the children’s voices and urgent requests regarding custody, while also denying them the right to representation of counsel, even though the GAL’s position was the precise opposite of those wishes.

The trial court then employed a remedy which has been labeled “draconian” and “a cure worse than the disease” even by leading parental alienation scholars.  This remedy – – granting the hated parent custody while prohibiting all contact with the parent to whom the children are bonded – intrinsically imposes a psychically traumatic loss on children, even apart from the potential risks in their father’s custody.  The trial court’s decision disregarding the Children’s position and terror of their father, granting Mr. O’Malley sole custody, and terminating all legal custodial rights of Mrs. O’Malley, abused its discretion and should be reversed.

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law: Denial of a person, under the age of majority, the right to counsel and to participate actively in trial proceedings to which they are a party, is a violation of that person’s rights to equal protection and due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution, Section 2, Article I, Ohio Constitution and Section 16, Article I, Ohio Constitution.

In this case, parental alienation labeling was used to silence the children’s voices, wishes, and reports of abuse and to subject them to the very parent of whom they were terrified.  PAS is scientifically invalid, unfounded, and has been found inadmissible.  Parental alienation (“PA”), while not a universally invalid concept, has been recognized to be invalid when it is used, as it was here, to deny abuse.  The trial court’s decision in this case was driven by parental alienation labeling, which obscured the validity of the abuse reports, the children’s genuine terror, and led the trial court to deny the Children counsel and the ability to actively participate in proceedings that governed their lives.  The outcome of the proceeding, on its face,defies logic – giving a felon convicted of possession of obscenities involving children custody and depriving a mother with no criminal record and a strong bond with her children of all contact with them.  Amici urge this Court to address this misuse of false pseudo-science which too easily subjects children to continuing abuse.

I.                THE USE OF Alienation[J1]  LABELING IN CUSTODY LITIGATION TO DENY A PARENT’S ABUSE HAS BEEN WIDELY REJECTED AS SCIENTIFICALLY INVALID.

A.              PAS Has Been Scientifically Discredited and Found Inadmissible.

PAS was developed in the early 1980s through the self-published articles of a psychiatrist who specialized in treating divorcing families and who believed – without conducting any studies and relying only on his interpretation of his personal clinical experience – that vengeful mothers employed child abuse allegations as a weapon against ex-husbands to ensure custody to themselves.  See Richard A. Gardner, The Parental Alienation Syndrome: A Guide For Mental Health And Legal Professionals (Cresskill, N.J.: Creative Therapeutics, 1992).  This theory presumed that children’s reports of child abuse are illegitimate and due solely to the mother’s pernicious influence and desire to exclude the father from the children’s life.  Jennifer Hoult, The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law and Policy, 26 Child. Legal Rts. J. 1-61, 9 (2006) (Gardner’s diagnostic criteria ‘‘tautologically presume pathology, parental contribution, and lack of justification” for child’s hostility).

PAS has been overwhelmingly rejected by the scientific community, which has found that ‘‘the scientific status of PAS is, to be blunt, nil.” See Robert E. Emery et al., A Critical Assessment Of Child Custody Evaluations: Limited Science And A Flawed System, 6 Psych. Sci. Pub. Int. 1-29, July 2005, at p. 10. “PAS as a scientific theory has been excoriated by legitimate researchers across the nation.  Judged solely on his merits, Dr. Gardner should be a rather pathetic footnote or an example of poor scientific standards.”  Carol Bruch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Fam. L.Q. 527-552 (2001) (quoting Paul Fink, past President of American Psychiatric Association) (citation omitted).  PAS’ Sexual Abuse Legitimacy Scale has been called “probably the most unscientific piece of garbage I’ve seen in the field in all my time. To base social policy on something as flimsy as this is exceedingly dangerous.” Id. at 539n.46 (quoting expert Professor Jon Conte) (citation omitted).

Echoing the scientific consensus, a leading judicial body, the National Council of Juvenile and Family Court Judges (NCJFCJ) has published Guidelines for family courts, which states:

The theory positing the existence of ‘PAS’ has been discredited by the scientific community . . . Any testimony that a party to a custody case suffers from the syndrome or ‘parental alienation’ should therefore be ruled inadmissible …

 

Clare Dalton et al., Nat’l Council of Juvenile & Fam. Ct. Judges & State Justice Inst.,  Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide, 24 (2004 rev. 2006). Numerous other legal experts have joined the chorus.  The American Prosecutors’ Research Institute states that:

[A]lthough PAS may be hailed as a ‘syndrome’ … in fact it is the product of anecdotal evidence gathered from Dr. Gardner’s own practice …. PAS is based primarily upon two notions, neither of which has a foundation in empirical research… PAS is an unproven theory that can threaten the integrity of the criminal justice system and the safety of abused children.

 

Erika Ragland & Hope Field, Parental Alienation Syndrome: What Professionals Need to Know, 16:6 Nat’l Ctr. for Prosecution of Child Abuse (NCPCA) Update Newsletter, 2003, p. 1.

[could condense and just move to string cite if need to save space] It should be no surprise, then, that the few appellate courts that have directly addressed the scientific validity and admissibility of PAS have rejected it.  Snyder v. Cedar, 2006 Conn. Super. LEXIS 520 (2006) (PAS lacks “any scientific basis and has not been subjected to “credible scientific studies” and “lacks any methodological underpinning” and is thus “incapable of helping the fact finder determine a fact in dispute”);  People v. Fortin, 706 N.Y.S.2d 611 (N.Y. Co. Ct. 2000) (rejecting PAS defense to child sexual abuse prosecution after Frye hearing on admissibility on grounds it is not generally accepted in the scientific community); NK v. MK, 17 Misc.3d 1123 (A), 2007 WL 3244980 (N.Y. Sup. 2007) (there is no “generally accepted diagnostic determination or syndrome known as ‘parental alienation syndrome … [courts must critically examine expert opinions] especially where there are allegations of domestic violence which must be considered in the context of a custody dispute”‘).  This Court should do the same.

B.              “Parental Alienation” – Without the Syndrome – Is Also Scientifically Invalid When Used to Defeat Abuse Claims

Amici acknowledge that the concept of alienating behavior by a parent who denigrates the other parent to the children is real.  But such behavior does not support the ideas associated with PAS and “parental alienation” — that derogatory talk by a parent can result in children’s false abuse allegations, and pathological fear and hostility toward their father.  On the contrary, the research literature makes clear that, while many divorcing parents engage in such alienating conduct, it has relatively little impact on children, and even less to do with abuse allegations.

First, the leading alienation researchers have found that, while alienating behaviors by both parents are the norm at divorce, alienated children are quite rare.  Janet R. Johnston & Joan B. Kelly, Commentary on Walker, Brantley, and Rigsbee’s (2004) ‘A Critical Analysis of Parental Alienation Syndrome and Its Admissibility in the Family Court,’ 1:4 J. of Child Custody, 77-89, 81 (2004) (despite universally alienating behaviors by parents in study; only 20% of children were hostile to one parent and only 6% were “extremely negative”).

Second, and more importantly, the research has consistently found that children’s “alienation” always stems  at least in part from the disfavored parent’s own conduct, including neglect, abuse, or lack of warm, involved parenting.  Janet R. Johnston et al., Is It Alienating Parenting, Role Reversal or Child Abuse? A Study of Children’s Rejection of a Parent in Child Custody Disputes, 5 J. Child Custody, 191-218, 207-08 (2005).  Thus, the research (as well as common sense) compels the conclusion that, whether or not one parent engages in alienating behavior, the mere label of alienation does not eliminate the necessity to assess what behaviors by the disfavored parent have contributed to a child’s alienation.

Perhaps most importantly, there is no scientific basis for the idea that one parent’s alienating or derogatory comments or conduct toward the other parent can cause children to express fear, rage or distress toward the other parent.  On the contrary, children’s fear, post traumatic stress symptoms and regression are supportive of claims of abuse.  Kathleen C. Faller, Maltreatment In Early Childhood: Tools For Research-Based Intervention (NY 1999); Sue Righthand et al., Child Maltreatment Risk Assessments: An Evaluation Guide (NY 2003).  In short, the empirical data demonstrates that the dominant use of alienation theory by evaluators – to refute abuse allegations and to ignore children’s expressions of distress – is scientifically invalid and unsupportable.

Accordingly, leading mental health and legal professionals have concluded that parental alienation is “an inappropriate psychological label” that is too often used to discredit women and children alleging abuse in custody cases.  Am. Psychological Ass’n., Violence And The Family: Report Of The Apa Presidential Task Force On Violence And The Family 40, 100 ( 1996) (concluding that abusive fathers commonly use arguments of alienation to blame mothers for why their children reasonably fear and hate them).  Indeed, the NCJFCJ, in words that could have been written for this case, warns:

In contested custody cases, children may indeed express fear of, be concerned about, have distaste for, or be angry at one of their parents.  Unfortunately, an all too common practice in such cases is for evaluators to diagnose children who exhibit a very strong bond and alignment with one parent and, simultaneously, a strong rejection of the other parent, as suffering from ‘parental alienation syndrome’ or ‘PAS”‘ …. The discredited ‘diagnosis’ of ‘PAS’ (or allegation of ‘parental alienation’), quite apart from its scientific invalidity, inappropriately asks the court to assume that the children’s behaviors and attitudes toward the parent who claims to be ‘alienated’ have no grounding in reality.  It also diverts attention away from the behaviors of the abusive parent, who may have directly influenced the children’s responses by acting in violent, disrespectful, intimidating, humiliating and/or discrediting ways toward the children themselves, or the children’s other parent.

 

Dalton et al., supra at 24. The trial court here made precisely this mistake in relying on an alienation label to disregard the children’s repeated and credible reports of abuse.  The Eighth Appellate district compounded the error and this Court’s attention is now required.

II.             Parental Alienation Theory Permeated This Proceeding and Drove the Trial Court’s Findings and Decision

Despite the scientific inaccuracy of PAS, the misuse of the related “parental alienation” theory, and the advice of other judges to disregard these theories, the trial court permitted PAS and “parental alienation” to affect its interpretation of the evidence and ultimately its custody decision.  The trial court found that Ms. O’Malley “started a deceptive campaign to recast father in the eyes of his children” (T.D. 559, 74), bent “the children’s will to conform to her own attitudes, feelings and beliefs and agenda.”[6] (T.D.559, 2), and “alienat[ed] the children’s affections from Father” (T.D. 559, 75).  The court jumped to these conclusions without ever directly considering [?]the children’s corroborated reports of violence and fear of their father.

Even leading scholars of PA have emphasized that when young children are severely alienated from a parent, it is always due in part to the alienated parent’s own behavior.  Johnston et al., Is it Alienating Parenting, Role Reversal, or Child Abuse?  A Study of Children’s Rejection of a Parent in Child Custody Disputes, 5 J. Emotional Abuse 191, 206 (2005).  In this case, Ms. O’Malley presented evidence that the Children had been physically abused by Mr. O’Malley, abuse that would reasonably result in their hostility towards their father.  Indeed, several physicians and psychologists who had interacted with the children close to the time of the alleged abuse found their reports credible and not coached.  (T.D. 559, 32 (Dr. Weinberger “did not think the children exaggerated their problems”); id. at 35 (therapist at Women Safe shelter did not think Ms. O’Malley was coaching the children about their negative experiences with their father); id. (second therapist at Women Safe also found lack of coaching because the children were “spontaneous and expressive”)).

Second, having jumped over the evidence of child abuse and child trauma, and thereby silencing the Children’s voices in the litigation, the trial court violated the Children’s right to due process by refusing to appoint them counsel separate from counsel for the GAL.  Instead, the Court found that the Children’s interests were sufficiently protected by the GAL, even though her position regarding custody was in direct opposition to the Children’s express wishes.  Amici wish to emphasize that it is undisputed that the Children have (at the very least) significant fear of their father and anxiety about spending time with him.  (E.g., T.D. 559, 7, 33, 36-38; T.D. 477 13, 19-20, 28.)  It is also undisputed that the children have accused their father of [physically assaulting and terrorizing them] [abuse].  (See e.g., T.D. 559, 36-38; Chldn. Intv. Tr. vol I, 7:13-8:22, 26:25-27, 29:6-8, 41:2-12); Chldn. Intv. Tr. vol II, 7:13-8:22, 12:5-10.)  Yet the GAL “work[ed] from the premise that domestic violence by Father against the children did not happen” (T.D. 559, 28) to conclude that Mr. O’Malley should have sole custody of the Children (see T.D. 559, 23).  How the GAL could possibly be protecting the Children’s interests when she assumed there was no abuse, and totally disregarded their fears, reports, and the medical evidence and expert opinions about abuse, is incomprehensible.  [7]  The trial court’s decision regarding representation was an abuse of discretion and should be reversed.[8]

Third, the trial court’s viewing the Children’s alleged misbehavior with their father and reunification professionals through the lens of alienation theory led it to miss the obvious:  that the Children’s misconduct was likely an emotional acting out in reaction to their father’s own aggression against them and the reunification professionals’ refusal to take their fears seriously.  All of the misconduct identified by the Court occurred after the Children claim to have had abusive interactions with Mr. O’Malley.  (See T.D. 559, 31, 35, 38 (allegations of abuse in 2008 and 2009); id. at 41, 59-63 (statements about misbehavior from reunification therapist and Mr. O’Malley’s witnesses).)  The court also failed to recognize that the Children’s misbehavior was directed towards individuals and professionals working towards reunification of the Children with their father, a result that they did not want and actively feared.  (See id.)  Such hostility towards Mr. O’Malley and those perceived to be aligned with him is a natural reaction to the behavior of the alienated parent, not the product of brainwashing or coaching by their preferred parent.  Johnston et al, supra, at 206.  [According to the accounts of other witnesses and professionals not involved in reunification, the Children were generally well behaved.  (See T.D.559, 55-57, 76 (trial court acknowledging that the children had no behavior issues at home, in school, and in the community[J2] ).)]

Fourth, the trial court allowed alienation theory to distort the best interest factors, thus, among other things, treating the “harm” of not having a relationship with Mr. O’Malley as the trump which implicitly outweighed the risks presented by the corroborated evidence of his child abuse and predilection for sexual arousal from child pornography, revealed by his conviction for possession of obscene materials involving children with adults and animals.[9]  Amici posit that given his history of violence and sexual crime, the potential harm from Mr. O’Malley’s continued unsupervised access to the Children is recognizably greater than the speculative harm of their lack of active involvement with him.  See Meier, J. “The Misuse of Parental Alienation Syndrome in Custody Suits,” Violence Against Women in Families and Relationships (Evan Stark and Eve Buzawa, eds., 2009) at 157 (prognostications of long term harm to “alienated” children are “merely speculative”) (citing to Johnston, Children of Divorce Who Reject a Parent and Refuse Visitation:  Recent Research and Social Policy Implications for the Alienated Child, 38 Fam. L. Q. 757 (2005)).

Finally, and most disturbingly, the court drew on the most destructive tenets of PAS when it took the extreme measure of forcing the Children to live with Mr. O’Malley, while derpving tyhem of all contact with their mother, until they had [quote opinion?] [stopped complaining about their father.]  Even the leading parental alienation experts have criticized and renounced the use of custody switches to “cure” PAS.  See Meier, J. A Historical Perspective on Parental Alienation Syndrome and Parental Alienation, 6 J. Child Custody 232, 246 (2009) (citing to Johnston, 2005, supra, 757).

In sum, the trial court’s formulaic application of parental alienation theory, contrary to the recommendations of the scientific community and leading legal bodies silenced the children’s reports of harm and fear, and denied them [their right to??] access to the courts to be heard.  This ruling abused the court’s discretion and should be reversed.

III.           The Trial Court’s Adoption of Parental Alienation Harmed the children

The trial court’ improper adoption of the theory of parental alienation, disregard of the Children’s wishes, and its award of custody to Mr. O’Malley endangered the physical and mental health of the Children.  After the final custody order was issued, both children were taken to a local hospital after threatening suicide on a 9-1-1 call. [10]   Patrick stated to the 9-1-1 dispatcher, “My name is (bleep) O’Malley.  And if you make me go with my dad I’m going to kill myself.”  Upon arriving at the house, the police learned that the Children had locked themselves in a room upstairs and were holding knives to their throats.  The Children were removed and taken to Rainbow Babies & Children’s Hospital where they were admitted for the next ten days.  These were desperate acts done by desperately terrified children.[11][J3]

The psychic trauma expressed and revealed by the Children’s desperate acts in response to the court’s order is indicative of precisely the kind of harm which has been documented by the scientific community as causing lifelong severe harmful effects.  The Adverse Childhood Experiences (“ACES”) Study documents how severe psychic stress and chronic childhood trauma releases hormones that can physically damage a child’s developing brain.  See Stevens, The Adverse Childhood Experiences Study – the Largest Public Health Study You Never Heard Of, Part Three, The Huffington Post (Oct. 8, 2012, 9:33 AM), http://www.huffingtonpost.com/jane-ellen-stevens/the-adverse-childhood-exp_7_b_1944199.html (accessed Jan 2, 2014) [hereinafter The ACEs Study].  The longterm impact of this damage has been seen in the powerful relationship between ACEs – including sexual and physical abuse, and witnessing domestic violence and other forms of household dysfunction – and the risk of attempted suicide throughout life.  See Dube et al., Childhood Abuse, Household Dysfunction, and the Risk of Attempted Suicide Throughout the Life Span, 286 J. Am. Med. Ass’n 3089 (2001).  The risk of attempting suicide increased from between 200% and 500% if a child was exposed to emotional abuse, physical abuse, sexual abuse, or a battered mother.  See id.  The same studies demonstrate that ACEs trigger “flight, fright or freeze” hormones that become “toxic[J4] ” when “turned on” for too long.  The ACEs Study.  This is precisely what happens [WHAT?] when children are exposed to regular fear of physical and emotional abuse at home.  See id.

In this case, the known facts about the Children’s feelings and PTSD make it an unavoidable conclusion that they have suffered the kind of psychic traumatic stress (i.e., adverse childhood experiences) which damages brain development and future well-being , by being forced to live with the father who terrorizes them.  .  This will likely only increase over time so long as they are forced to remain in his custody.  Notably, several of the Children’s therapists found that their contact with their father “significantly exacerbated PTSD symptoms . . . [and] are interfering more with [Patrick’s] ability to perform everyday activities (e.g., sleep difficulties, daytime fatigue, academic performance) and his overall function.”  (T.D. 559, 42 (quoting psychologist’s report recommending that “it is in Patrick’s best interest that visitation with Dad be decreased or eliminated[J5] ”).)

In addition to placing the Children with their father full-time, the court forbade the children even from communicating with their mother, the parent upon whom they depended, for an indeterminate length of time.  The children then went seven months without seeing their mother, and had only seventeen hours of supervised visits over a sixteen month period.  Taking a parent away from a child [as a form of punishment[J6] ] is cruel and inevitably traumatic: the harm to children when they are ripped away from a parent they love and forced into the custody of a parent they fear or hate has been recognized by leading alienation experts Johnston et al. to be a “cure worse than the disease.”  Johnston, 2005, supra at 757.  The trauma of being ripped from a parent upon whom a child depends inflicts serious longlasting harm.  McLaughlin et al., Childhood Adversities and First Onset of Psychiatric Disorders in a National Sample of US Adolescents, 69 Archives Gen. Psychiatry 1151 (2012) (finding that separation from a parent during childhood is linked to increases in behavioral and psychiatric disorders).

[could cut or shorten if necessary] Amici wish to emphasize the dangers to children when courts disregard evidence of physical and emotional abuse and improperly rely on parental alienation to award custody:  As long as abuse has not been ruled out, and children’s feelings could be explained by actual experiences with the disliked parent, courts which use alienation as the court did here, are inevitably taking significant chances with children’s safety.  [CITE MY DECISION TREE OR VAWNET ARTICLE?] Too often what may be perceived as alienation may in fact reflect only a protective parent’s efforts to provide emotional support for distressed children reporting distressing things, and to keep the children physically and emotionally safe.  See Hanke v. Hanke, 94 Md.App. 65, 72, 615 A.2d, 1205 (1992) (holding that a court’s primary responsibility is to protect the minor child, and not to punish [the mother] by removing the child from her custody to punish her non-cooperation with visitation).   If children’s extreme hostility and acting out against a parent become grounds for custody to that parent, as occurred with this case, then the more abusive and hateful a parent is, the more likely that parent can get custody.  That is, a parent who causes his children to hate him and to act out their negative feelings, can simply cry “alienation” and thereby win full custody.  Whether or not that is what happened here, the trial court’s analysis makes it all too possible.  This Court should reverse the ruling and instruct future courts that evidence of abuse and harm to children cannot simply be wiped away by tacking an alienation label on the opposing party.

CONCLUSION

The Court should accept jurisdiction of this Appeal.

Respectfully submitted,

 

 

 

______________________________

Georgia E. Yanchar (#0071458)

CALFEE, HALTER & GRISWOLD LLP

The Calfee Building

1405 East Sixth Street

Cleveland, OH  44114

 

Steven Bernstein (pro hac vice pending)

GOODWIN PROCTER LLP

The New York Times Building

620 Eighth Avenue

New York, NY 10018

 

Hong-An Vu (pro hac vice pending)

GOODWIN PROCTER LLP

Three Embarcadero Center, 24th Floor

San Francisco, CA 94111

Attorneys for Amici Curiae

 

IV.           CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Brief of Amici Curiae was served by electronic mail on this 10th day of January 2014 to the following:

 

Brian Schick
1516 Sunview Road
Lyndhurst, Ohio 44077

brilliantchic@operamail.com

Attorney for Appellant

 

Margaret Metzinger

Climaco, Wilcox, Thurman & Daray, L.L.C.

55 Public Square, Suite 1950

Cleveland, OH 44113

mmmetz@climacolaw.com

Attorney for Appellee

 

Adam Thurman

22021 Brookpark Road, Suite 110

Cleveland, OH 44126

adam@adamthurmanlaw.com

Attorney for Guardian ad Litem Sandra McPherson

 

 

______________________________

Georgia E. Yanchar (#0071458)

CALFEE, HALTER & GRISWOLD LLP

The Calfee Building

1405 East Sixth Street

Cleveland, OH  44114

 

Attorney for Amici Curiae

 

 



[1] The “Domestic Relations matter” refers to O’Malley v. O’Malley, 8th  Dist. No. 98708, 2013 Ohio App. LEXIS 5451 (Nov. 27, 2013) and the “Juvenile matter” refers to O’Malley v. O’Malley, 8th  Dist. Nos. 99334 & 99335, 2013 Ohio App. LEXIS 5450 (Nov. 27, 2013).

[2] The “Children” refers to Patrick and Caitlin O’Malley.

[3] [mention about federal prosecutor?] can we mention the fed prosecutor’s strong petition or warning of his dangerousness to children?

[4] The trial order originally prohibited visitation for Ms. O’Malley and placed the decision on when to permit Ms. O’Malley visitation with a therapist to be chosen by Mr. O’Malley.  (See T.D. 559, 80-81.)  It appears that this delegation was unconstitutional [CITE cases in family law textbooks – I will look] as well as operating as a functional termination of  Ms. O’Malley’s parental rights.

[5] Action Ohio Coalition for Battered Women, Ohio Now Education and Legal fund, Professor Mike Brigner, J.D. and Domestic Violence Legal Empowerment and Appeals Project

[6] The court below acknowledged that “the children have a very strong bond with Mother.”  (T.D. 559, 2.).  It then twisted this positive factor to support Mr. O’Malley’s alienation theory.  Contrary to the trial court’s interpretation, the Children’s alignment with Ms. O’Malley is not a sign of alienation.  Rather, where one parent is frightening, a closer, deeper bond with the competent, safe parent is a natural response to the dynamic of fear and intimidation in the home.  Bancroft & Silverman, The Batterer as Parent 127 (1st ed. 2002).

[7] This is not the first time that the GAL’s opinion has been harmful to the Children.  The GAL supported the Children visiting their father in prison (see T.D. 559, 29), which Dr. Wiggers, the Children’s therapist from June-November 2009, found to be “[i]n [her] professional opinion” “not be in Patrick’s best interest at this time.” (see T.D. 559, 38). [COULD CUT THIS]

 

[8] In the Juvenile Matter, the trial court appointed the Children their own counsel, but, as stated in Ms. O’Malleys jurisdictional brief, their counsel was unable to talk to them during the proceedings and thus could not properly advocate for their position.

 

[9] The trial court’s finding that Mr. O’Malley’s conviction was not a conviction involving harm to children relevant to the child’s best interest, is not reconcilable with objective common sense, and is likely [clear error/abuse of discretion?].  (See T.D. 559, 78).  Other courts have found that possession of child pornography, by virtue of creating a market place for such material, intrinsically causes harm to children.  See e.g., United States v. Davis, 204 F.3d 1064 (11th Cir. 1999) (“the harm resulting from possession of child pornography occurs when one sustains a market for such pictures”); United States v. Norris, 159 F.3d 926 (5th Cir. 1998).

[10] The Court may take judicial notice of these facts.  The facts were reported by the news media and based on 9-1-1 transcripts and police and hospital reports, and are not subject to reasonable dispute.  See Big-name Cleveland family embroiled in custody battle, http://www.19actionnews.com/story/19665358/tonight-at-11-big-name-cleveland-family-embroiled-in-custody-battle (accessed Jan. 2, 2014).

[11] The Children’s response is not unusual where parental alienation has been used to disregard allegations of abuse.  Children have become suicidal, and some have died in response to an order to live with the father they said abused them. See Bruch, supra 550 n. 8 (12 year-old boy hung himself; 8 year-old girl became suicidal when institutionalized and cut off from her mother).


 [J1]If we need to cut we could condense significantly

 [J2]I’m not sure this helps – since it is also true under the Court’s theory that the bad behavior was reserved for their father and his allies.  The fact they behaved well elsewhere does not disprove alienation.

 [J3]I’m pretty sure he was hospitalized for mental issues too – I’d include this as it sure puts a point on his dangerousness

 [J4]What is the harm of “toxic” hormones?

 [J5]Would be great if we could sum up with the number of professionals who found the kids credible and recommended LESS access to dad

 [J6]I’m sure the court did not consider it punishment… or would not concede it

 

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