2011 VT 114


DeSantis v. Pegues (2010-178)
 
2011 VT 114
 
[Filed 07-Oct-2011]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801 of any errors in order that corrections may be
made before this opinion goes to press.
 
 

2011 VT 114 

 

No. 2010-178

 

Ann Marie DeSantis


Supreme Court


 


 


 


On Appeal from


     v.


Washington Family Court


 


 


 


 


John E. Pegues


May Term, 2011


 


 


 


 


Thomas
  J. Devine, J.


 

Pamela Gatos of Tepper Dardeck Levins & Gatos, LLP, Rutland,
for Plaintiff-Appellee.
 
Alan P. Biederman of Biederman Law Office, Rutland, for
Defendant-Appellant.
 
 
PRESENT:   Dooley, Johnson, Skoglund and Burgess,
JJ., and Crawford, Supr. J., 
                    
Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.   Father appeals the family court’s denial
of his motion to reinstate parent-child contact following a voluntary
suspension of such contact due to an allegation of child sexual abuse.  We
hold that the court’s finding of sexual abuse by a preponderance of the
evidence was insufficient to support an order effectively terminating father’s
parental rights.  We reverse and remand.
¶ 2.            
The parties were married in 1991, adopted their daughter in 1996, and
separated in July 2004.  Mother and daughter stayed in the marital home,
and father sought alternate housing, eventually moving into a two-bedroom
condominium.  The parties worked out an informal visitation schedule
during this time, though there was no overnight contact due to mother’s
concerns about father’s drinking.
¶ 3.            
The separation affected daughter badly: she had nightmares and emotional
outbursts with tears and tantrums.  Mother wanted daughter to have
counseling to address the issues triggered by the separation and eventual
divorce.  She was also concerned about father’s “physical boundary”
issues.  Starting when daughter was very young, she and father engaged in
lots of physical play.  She would climb all over him, and he would tickle
her, at times until she fell down laughing and at times to the point of
tears.  He would grab her ankles, stare into her eyes, and suck her toes,
calling them “tasty morsels.”  He would also kiss her repeatedly,
sometimes so much that her cheeks would redden from his beard.  Mother believed
that, as daughter grew, the kisses became more “soulful” and
“passionate.”  The level of play between the two and its intensity became
a source of concern for her.  The two played a game where they
would kiss one another’s bare stomachs, making slurping sounds.  Mother
explained to daughter that “Daddies and girls don’t kiss that way.” 
Toward the end of the marriage, when father was drinking heavily, mother often
found him asleep in daughter’s room; on one occasion she found him asleep in
daughter’s bed with his hand on her bare buttocks.  Father’s condominium
had a separate bedroom for daughter that included a long, narrow closet, which
he outfitted with a beanbag chair, a sleeping bag, and a place for toys. 
Mother testified that daughter referred to it as the “secret closet” and said
she and father played kissing and tickling games there.  At the hearing,
daughter testified that she and father played a game called “How naked can you
get?” in the closet where father would begin taking his clothes off and then
start taking her clothes off.  She did not say whether either of them got
completely undressed, though she did say it made her feel uncomfortable.
¶ 4.            
Throughout this time the parties were negotiating parent-child
contact.  Father still had not had overnight contact.  Mother was
convinced any contact should be supervised, and father reluctantly
agreed.  Two of the people who supervised many of daughter’s visits with
father testified that the visits were uneventful and that the child seemed
happy with her father.  After one such visit father was coming out of the
house with daughter in his arms.  Upon seeing mother he began rubbing
daughter up and down his pelvis in a slow motion—all the while grinning at
mother and making grunting sounds.  Mother thought he did it to provoke
her.
¶ 5.            
In August 2004, a month after her parents separated, daughter began
therapy with a licensed clinical social worker.  The therapist met first
with mother and then with father.  Mother’s chief concern was father
having “physical boundary” issues.  Father was concerned about his lack of
overnight visitation with daughter.  In working with daughter, the
therapist saw no sign that daughter did not want to spend time with
father.  Nor did she see any indication of sexual abuse in the child.
 Mother ended the therapy after three sessions.
¶ 6.            
Mother next brought daughter to a licensed psychologist.  Daughter
visited this psychologist for roughly a year, beginning in December 2004. 
He first met with mother who informed him that daughter was having difficulty
adjusting to the separation and that father had an “overly physical
relationship” with the child.  He diagnosed daughter as having an
adjustment reaction with signs of anxiety and depression.  He did not ask
daughter any direct questions about sexual abuse.  However, daughter
described some of the games she and father had played and, based on daughter’s
description, the psychologist, a mandated reporter for child abuse, made a
referral for suspected abuse to the Department for Children and Families (DCF)
after the second therapy session.  He considered this a “precautionary
measure” because he could neither rule out sexual abuse, nor rule it in as a
cause for daughter’s depression.    
¶ 7.            
In January 2005, mother hired Dr. Hasazi, a recognized expert in the
field of forensic psychology, to perform  a forensic evaluation, make
recommendations, and implement a plan for parent-child contact.  He
conducted multiple interviews with mother, father, daughter, and others. 
He met with daughter alone and observed father and daughter in play sessions.
 He found daughter “consistent in her desire to spend time with her
father.”  He noted themes of separation in daughter’s play and found she
exhibited anxiety.  At a session at father’s house, daughter happily
showed Dr. Hasazi the “secret closet.”  He told father to get rid of the
secret closet and suggested that father kiss daughter on her cheeks and not her
mouth.  Dr. Hasazi also recommended father get counseling on boundary
issues, which he did.  
¶ 8.            
In May 2005, the parties crafted a stipulation with Dr. Hasazi’s input
whereby father’s contact would proceed from supervised to unsupervised in a
gradually expanded manner through five levels.  The parties stipulated
that Dr. Hasazi would determine whether and when father and daughter were ready
for the next level.  On May 13, 2005, the court ordered the parent-child
contact as set forth in the stipulation.  
¶ 9.            
In July 2005, Dr. Hasazi notified the parties that father was ready to
move up to level two—unsupervised, nonovernight contact.  In August,
daughter’s psychologist wrote to Dr. Hasazi, suggesting father was ignoring the
physical boundary restrictions they had agreed upon. Mother testified that,
after daughter’s second unsupervised visit with father, daughter came home
“distraught” and wet her pants, which she had not done in years.  The
unsupervised visits continued, and mother testified that daughter complained of
stomach aches and had nightmares.  Meanwhile, Dr. Hasazi asked both
parents to submit to a polygraph examination.  Father did so, but mother
did not.  At the hearing, Dr. Hasazi testified he could not form an
opinion on whether father had sexually abused daughter. 
¶ 10.        
In October 2005, daughter relayed to mother, through a game of
animal-character role-play, how “Father Rabbit had a long hard tail between his
legs” and he would “give Little Rabbit medicine that made her sleepy even
though she wasn’t sick.”  Daughter then demonstrated how she held and
squeezed Father Rabbit’s tail.  The next day, mother spoke at length about
these stories with daughter’s psychologist, who then made a second referral to
DCF.[1] 
Some time prior to December 2004, mother noticed some drawings daughter had
made. [2] 
In one drawing a rabbit is frowning; in one a rabbit is crying; in one two rabbits
stand with tails touching; in one a large figure stands over a small rabbit
that lies on its back on a table.  These drawings were admitted into
evidence at the hearing.
¶ 11.        
Also in October 2005, mother received an offer of employment near
Rochester, New York, and she decided to accept.  The parties modified the
visitation stipulation in November 2005 to allow for father’s visitation, and
mother and daughter moved to New York shortly before Christmas.  After the
move, daughter told some of mother’s family members about the rabbit stories
and said she was Little Rabbit.  Mother then contacted New York State
Child Protective Services (CPS).  While the resulting CPS investigation
was pending, father had his first visit with daughter scheduled for around New
Year’s Day.  Mother urged Dr. Hasazi to cancel the visit but he
declined.  She then called the Vermont State Police and asked them to stop
the upcoming visit.  The detective with whom mother spoke agreed to
interview daughter but said he would not stop a court-authorized visit in New
York.
¶ 12.        
When father visited, he, his girlfriend and daughter stayed in a motel
room.  Father slept in one bed, daughter in another bed, and the
girlfriend on a roll-out cot.  Father had promised to remain
clothed.  During the night, daughter had a nightmare, and when she awoke,
father was standing over her without a shirt on.  He quickly apologized
and pulled his shirt on.  After this incident Dr. Hasazi moved the visits
back to supervised nonovernight visits.
¶ 13.        
The CPS investigation moved forward, and daughter was repeatedly
interviewed by multiple investigators, social workers, and psychologists about
the nature of father’s physical contact with her.  She did not report
being sexually abused to any of them.  In March 2006, mother engaged a
licensed clinical social worker, Corey Sorce, and told her about the family’s
history of visitation conflicts and that daughter had disclosed sexual abuse to
mother.  Ms. Sorce met with daughter and testified that daughter disclosed
sexual abuse by father within the first twenty minutes of their initial
session.  Based on information gathered from mother and daughter, Ms.
Sorce found daughter’s report credible and concluded daughter had been sexually
abused.  She reached this conclusion without obtaining any information
from either Dr. Hasazi or daughter’s psychologist in Vermont.  She
contacted CPS to make a formal referral, and she also wrote to Dr. Hasazi about
daughter’s disclosure of inappropriate touching.  Prior to receipt of Ms.
Sorce’s letter, Dr. Hasazi knew nothing of Ms. Sorce’s involvement because
mother failed to notify him. 
¶ 14.        
Father continued to have visits with daughter supervised by his sister.
 Around May 2006, CPS “indicated” Ms. Sorce’s referral, meaning that there
was “some credible evidence” of abuse, though it was unclear what evidence CPS
considered in making its determination.  In June 2006, mother brought
daughter to Vermont for an interview with the Vermont State Police.  Based
on the interview, the State Police forwarded a report to the Washington County
State’s Attorney.
¶ 15.        
In February 2006, mother had moved to modify the Vermont visitation
order in a New York court.  That court dismissed the motion for lack of
jurisdiction, and mother filed again in Vermont in May and also requested that
the court relieve Dr. Hasazi of his oversight role.  The court held two
days of hearings on mother’s motion in August 2006, after which father, on the
advice of counsel and “due to other pending and potential legal proceedings,”
filed a stipulation for his parent-child contact to be voluntarily
suspended.  Father reserved to himself the right to petition the court for
relief from the suspension on a temporary or permanent basis.  The
stipulation also specifically stated that father’s suspension of visitation
“shall in no way have any weight or effect respecting any consideration of
parent-child contact, custody, or otherwise.”  The suspension was meant to
“be entirely without prejudice” to father.  The court approved the
stipulation on August 8, 2006.  
¶ 16.        
On October 19, 2006, father was charged with felony aggravated sexual
assault of his daughter.  After an eighteen-month investigation, the state
dismissed the charges with prejudice.  Father moved to dissolve the
interim suspension order in July 2008.  Mother responded by asking the
court to decline jurisdiction in favor of New York.  In November 2008, the
family court decided that Vermont courts would retain jurisdiction.  The
court also concluded that even if father had never committed sexual abuse, the
allegations of such abuse and the more than two years since father’s last visit
with daughter required the court to not simply lift the suspension and enforce
the November 2005 visitation order, but to view the motion to dissolve as a
motion to modify.  Accordingly, the court ruled that in approaching the
question of renewed contact, it would rely on the best-interests-of-the-child
factors laid out in 15 V.S.A. § 665(b).  In doing so, the court
noted: “Three years is a long time in the life of a child.  While the
family court case may have lain dormant all this time, the same cannot be said
of the child.”  Father subsequently filed a motion to modify contact.
¶ 17.        
During the resulting hearing, multiple witnesses testified about the
parties’ relationship, the allegations of sexual abuse, and the therapy
daughter had received throughout.  Two experts also testified.  Dr.
Maggie Bruck, a developmental psychologist and professor at Johns Hopkins
University School of Medicine and adjunct faculty member at McGill University,
and Dr. Eric Mart, a Board-certified forensic psychologist, testified about
interview techniques, the suggestibility of children, and fabrication of a
child’s memory based on the number and form of questions asked by
interviewers.  Both were critical of Ms. Sorce’s interview techniques and
her determination of abuse after spending only twenty minutes with daughter.
¶ 18.        
At the hearing, daughter testified about the rabbit drawings.  She
explained that the drawings were her way of saying that father was being
“disgusting and doing all this like gross stuff to me.”  When asked what
the “gross stuff” was, she replied: “Touch[ing] me in the wrong places and then
lying about it . . . .”  She never specified where the
“wrong places” were. 
¶ 19.        
Father also testified.  He steadfastly denied ever abusing
daughter, but admitted to exchanging long kisses on the lips and to kissing her
stomach.  He posited that daughter was not untruthful in her testimony,
but had been brainwashed into believing what she said.  He acknowledged
that daughter did not currently want to see him, but suggested it might be
necessary to “force” her to see him because it would benefit her in the long
run.
¶ 20.        
The court recognized the evidence presented—prolonged kisses,
toe-sucking, extended tickling, the games in the secret closet, the rabbit
stories and drawings—would not “rise to the criminal ‘beyond a reasonable
doubt’ standard” for a finding of sexual abuse.  The court also
specifically held that there was not sufficient evidence of abuse to meet the
clear and convincing standard required to terminate all parent-child contact,
citing to Mullin v. Phelps, 162 Vt. 250, 647 A.2d 714 (1994).
 However, the court concluded that there was sufficient evidence to
support a finding of sexual abuse by a preponderance of evidence and then
relied on this finding as evidence of “a real, unanticipated and substantial
change in circumstances” sufficient to satisfy the threshold to review a
modification of contact under 15 V.S.A. § 668.  
¶ 21.        
The court then reviewed the best-interests-of-the-child factors in 15
V.S.A. § 665(b) and found eight of the nine resolved in mother’s favor
with the other factor not applicable.  It found that the effect of abuse
on daughter and on her relationship with father was “the most critical factor
in this case.”  The court then conditioned any future contact between
father and daughter on “a demonstrated commitment by father to support
[daughter] in her own therapy and a willingness to work collaboratively with
[daughter]’s therapist to explore a time and a place whereby slow and careful
attempts at re-establishing contact can begin.”  It concluded that in
light of the § 665 factors: “it would be contrary to the child’s best
interest to force this child to have contact with father at this time.”  The
court stated that its decision not to order visitation was “not a termination
of parental rights, but based on the child’s needs and situation at this
time.”  
¶ 22.        
Father appeals the court’s denial of his motion to dissolve the interim
order.  He first claims there was insufficient evidence for the court to
find he had committed sexual abuse. He next argues the court’s order
effectively barred any future contact between him and daughter without a
finding of sexual abuse by clear and convincing evidence.  Finally, he
requests that, upon remand, the family court correct its ruling applying the
best-interests-of-the-child standard to his motion to dissolve. 
¶ 23.        
Father’s first claim attacks the foundation for the family court’s
finding that he sexually abused daughter.  He highlights the fact that the
court never attributed any sexual motivation or content to his acts with
daughter and suggests that the court improperly relied on daughter’s
drawings.  He further complains that the court made no express linkage
between his boundary issues and sexual abuse and that the court could not
properly have made such a linkage without expert evidence. 
¶ 24.        
While father, in his brief, challenges the court’s “conclusion” of
sexual abuse, the determination of sexual abuse in a case like this is a
factual finding.  See, e.g., Siegel v. Misch, 2007 VT 116, ¶¶ 6,
13, 182 Vt. 623, 939 A.2d 1023 (mem.) (affirming family court’s finding of
sexual abuse as supported by substantial evidence, even though result contrary
to earlier DCF finding); Fournier v. Fournier, 169 Vt. 600, 603-04, 738
A.2d 98, 103 (1999) (mem.) (declining to reverse family court’s finding of
sexual abuse by preponderance of evidence rather than clear and convincing
evidence because credibility assessment is family court’s role); Mullin,
162 Vt. at 262-63, 647 A.2d at 721 (concluding that finding of sexual abuse by
preponderance of evidence insufficient to terminate parental rights). 
Though the court may have stated this finding as a conclusion and included it
in the “Conclusions of Law” portion of its decision, the labeling and placement
of this finding was wrong.  The determination that father abused daughter
was a factual finding based on the evidence.  
¶ 25.        
What the family court did conclude was that a finding of abuse by a
preponderace of the evidence was sufficient to establish the jurisdictional
threshold to review modification of contact under § 665(b).  See 15
V.S.A. § 668 (premising modification of custody order on showing of
“real, substantial and unanticipated change of circumstances”); Siegel,
2007 VT 116, ¶ 6 (affirming family court’s finding of real, substantial, and
unanticipated change of circumstances sufficient to trigger modification based
on finding of sexual abuse).  In reviewing father’s challenge to this
finding, we discern no error.  
¶ 26.        
In looking at a family court’s decision regarding parent-child contact,
we apply a familiar deferential standard: we do not disturb findings of fact
unless they are clearly erroneous, and we uphold the court’s legal conclusions
if they are supported by the findings.  Miller-Jenkins v.
Miller-Jenkins, 2010 VT 98, ¶ 12, ___ Vt. ___, 12 A.3d 768 (mem.). 
Such findings are reviewed in a light most favorable to the prevailing party
and will not be disturbed absent a showing that “there is no credible evidence
to support the finding.”  Highgate Assocs. v. Merryfield, 157 Vt.
313, 315, 597 A.2d 1280, 1281 (1991).  Decisions regarding the granting,
modifying or denying of parent-child contact lie within the discretion of the
family court, and we will not reverse the court’s decision “unless its
discretion was exercised upon unfounded considerations or to an extent clearly
unreasonable upon the facts presented.”  Gabriel v. Pritchard, 173
Vt. 452, 454, 788 A.2d 1, 5 (2001) (mem.) (quotation omitted).  Because
the family court is in a unique position to assess the credibility of witnesses
and weigh evidence, it is entitled to draw all reasonable inferences from the
evidence.  Lyddy v. Lyddy, 173 Vt. 493, 496, 787 A.2d 506, 512
(2001) (mem.).
¶ 27.        
The record evidence of father’s actions with daughter was sufficient to
support the court’s finding by a preponderance standard that father sexually
abused daughter.  See T.B.H. v. Meyer, 168 Vt. 149, 152, 716 A.2d
31, 33-34 (1998) (noting this Court “will not render a cramped definition of
sexually abusive acts” and holding that abuse can properly be inferred from
taking nude photographs of minor).  Daughter explained that what happened
to the rabbits in her stories and drawings happened to her and said that
drawing the images was her way of showing that father was being “disgusting and
doing all this like gross stuff to me.”  The “gross stuff” she explained
was “[t]ouch[ing] me in the wrong places and then lying about it.”  See State
v. Cameron, 168 Vt. 421, 423, 721 A.2d 493, 496 (1998) (affirming
defendant’s conviction for lewd and lascivious conduct based on victim’s
testimony that “defendant rubbed her between the legs ‘in the front’ where ‘I
go to the bathroom’ ”).  The family court found such testimony
“compelling and credible in many respects.”  
¶ 28.        
Father admitted to having prolonged kisses with his daughter, often upon
the mouth, which mother described as passionate.  While kissing one’s
child or sucking on toes is certainly not necessarily abuse, the family court
could assess the import of such evidence in context and draw reasonable
inferences therefrom.  Though Ms. Sorce’s interview methods with daughter
and rapid adoption of daughter’s report of abuse were strongly criticized, it
was not clearly erroneous for the family court to rely on her factual testimony
regarding daughter’s disclosure.  The court’s determination was supported
by the evidence and we will not disturb it.  See Fournier, 169 Vt.
at 604, 738 A.2d at 103.
¶ 29.        
Finally, evidence was presented of daughter’s agitation and distress
surrounding contact with father after June 2005.  Though the psychologists
testified that there are many different factors at play in the mental and
physical health of any young person—particularly one at the center of so much
parental hostility—the family court was free to draw reasonable conclusions
from the evidence presented.  We cannot say the court erred in finding by
a preponderance of the evidence that father sexually abused daughter.
¶ 30.        
Father next avers that contrary to this Court’s precedent, the family
court’s order effectively barred future parent-child contact without concluding
he committed sexual abuse by clear and convincing evidence.  To support
this claim, he points to the fact that the family court predicated any future
contact he may request with daughter on him supporting daughter “in her own
therapy and [his] willingness to work collaboratively with [her] therapist to
explore a time and a place whereby slow and careful attempts at re-establishing
contact can begin.”  The court imposed these preconditions, father argues,
without any evidence that the therapist, Ms. Sorce, or daughter would work with
father, or any basis to conclude father will be able to support the therapy
provided by Ms. Sorce when there was no evidence presented as to its content.
 He further argues that the court lacks authority to control the actions
of the therapist, whether it remains Ms. Sorce or another professional. 
We agree and reverse on this point.
¶ 31.        
The case at the heart of this argument is Mullin v. Phelps. 
There, the mother moved to gain custody of the parties’ two sons after the
father was accused of abusing the boys.  The family court transferred
custody, which had been with the father for the previous six years, upon a
finding of sexual abuse by a preponderance of the evidence, and the court
conditioned father’s visitation upon his acknowledgement of the sexual
abuse.  We affirmed the court’s finding of abuse and the resulting
transfer of custody, but we reversed the court’s visitation order because it
“effectively terminated the father’s parental rights.”  Mullin, 162
Vt. at 262-63, 647 A.2d at 721.  In so doing, we adopted the standard
that, as a matter of due process, a court must find evidence of sexual abuse by
clear and convincing evidence in order to terminate all contact between a
parent and child.  Id. at 263, 647 A.2d at 721.[3]
¶ 32.        
The family court here expressly concluded that the evidence presented
did not reach the standard required to terminate father’s parental
rights.  In Mullin the family court conditioned father’s future
visitation on his admission of sexual abuse, even though the court believed it
unlikely he would ever acknowledge responsibility for the abuse or consent to
treatment.  Id.  That, we reasoned, effectively turned the
imposition of the condition into a termination, even though the court had held
open the possibility of therapeutic visits “at the behest of the children’s
therapists.”  Id.  We likewise denied a mother’s request for
termination of the father’s visitation rights in Fournier where the
family court had limited him to supervised visitation because it had found
sexual abuse supported by a preponderance of the evidence only.  169 Vt.
at 604, 738 A.2d at 103.
¶ 33.        
The family court gave two “clear precondition[s] of contact” requiring
that father demonstrate his commitment to support daughter in her therapy and
that he work collaboratively with daughter’s therapist.  No standards were
given for father to “demonstrate his commitment.”  He no longer has an
opportunity to demonstrate that he has internalized the lessons learned from
his participation in counseling on appropriate boundaries.  Beyond that,
the authority to approve, or disapprove, of his efforts to “work
collaboratively” with daughter’s therapist appears to lie with whatever
therapist mother chooses.  Obviously, the court cannot order any therapist
chosen to work collaboratively with father.  If Ms. Sorce continues in
this role, it is far from clear whether she would ever consider future contact
between father and daughter.
¶ 34.        
Mother suggests that if father’s efforts to regain visitation rights are
thwarted by mother or Ms. Sorce, he would have recourse to the courts. 
But this is true only if he can meet the jurisdictional threshold of 15
V.S.A. § 668 in showing a real, unanticipated, and substantial change
of circumstances.  Nothing in the family court’s order suggests that
father’s inability to support daughter’s therapy—whatever the cause—would meet
the requirements of § 668.  Such a structure is the effective
equivalent of a termination of rights.  
¶ 35.        
The Legislature has made clear that after separation or divorce, “it is
in the best interests of [the parents’] minor child to have the opportunity for
maximum continuing physical and emotional contact with both parents, unless
direct physical harm or significant emotional harm to the child . . .
is likely to result from such contact.”  15 V.S.A. § 650.  The family
court made no findings that father ever perpetrated abuse on his daughter
during supervised, nonovernight visits.  Moreover, supervised visitation
was the minimum level of contact the parties had stipulated to in the custody
order in force before father’s voluntary suspension of contact in 2006. 
It is worth noting that all of the instances the family court relied upon in
finding that father sexually abused daughter occurred before the parties
stipulated to this order—daughter even told mother her first Little Rabbit
story before the parties modified the order in November 2005 to allow father’s
visitation in New York.  Absent a showing by clear and convincing evidence
that any visitation would be detrimental to daughter’s best interests, Gabriel,
173 Vt. at 455, 788 A.2d at 5 (citing Mullin, 162 Vt. at 267, 647 A.2d
at 724), the court erred by halting all contact between father and daughter.
¶ 36.        
As we are remanding the case, we briefly address father’s request that
we clarify the appropriate standard for the family court to apply to father’s
motion to dissolve the voluntary suspension of parent-child contact. 
There was no error in the court’s application of a best-interests-of-the-child
standard to this proceeding for three reasons.  First, it is unclear what
prejudice father suffered as a result of the imposition of the threshold
showing for modification of the visitation order.  The family court found
a real, substantial, and unanticipated change of circumstances sufficient to
provide the court with subject matter jurisdiction, so father met any “burden”
foisted upon him.  He complains that he now must shoulder the additional
burden of proving that visitation is in the best interests of daughter, but as
we held above, absent a conclusion based on clear and convincing evidence that
any contact is contrary to daughter’s best interests, his right to visit her
cannot be entirely terminated.  Second, the language of the voluntary
suspension order contemplates court action, suspending contact “until further
Order of the Court.”  Nowhere does it suggest that dissolution of the
order would be in the hands of the parties or return the parties to status quo
ante.  Though it is true that the suspension of contact “shall in no way
have any weight or effect respecting any consideration of parent-child contact,”
it was the “issuance of the suspension”—father’s choice to suspend
visitation—that was meant to be “entirely without prejudice” and not the
underlying events giving rise to father’s choice to suspend contact or the
nearly two years which passed during the suspension.  
¶ 37.        
Finally, contrary to father’s contention, the passage of time without
any contact, coupled with the allegations of abuse and the effect such
allegations had on daughter’s wellbeing, required the court to reexamine what
level of parent-child contact would most benefit daughter.  Though the
court’s resulting visitation order was in error, its method of arriving at that
point was not.  See, e.g., In re Marriage of P.K.A., 725 S.W.2d 78,
82 (Mo. Ct. App. 1987) (affirming trial court’s modification of father’s
visitation because, by filing motion for mother’s contempt for denying
visitation, “father put the issue of child custody before the court and it had
jurisdiction to modify his visitation rights”); cf. Knutsen v. Cegalis,
2009 VT 110, ¶ 15, 187 Vt. 99, 989 A.2d 1010 (highlighting role of family court
in determining best interests of child even when parents agree to custody
arrangement, and recognizing that any change in custody requires weighing of
child’s best interests). 
¶ 38.        
On remand, the court is to consider parent-child contact for father upon
such terms and under such conditions as the family court deems necessary and
appropriate in the best interest of daughter.[4]  See Mullin, 162 Vt. at 267,
647 A.2d at 724 (“The interests of the parent alleging sexual abuse [in the
children’s safety], though important, can be protected by ordering supervised
visitation between the parent accused of abuse and the children.”); see also Fournier,
169 Vt. at 604, 738 A.2d at 103 (noting family court’s appropriate restrictions
on father’s visitation with child after finding of sexual abuse by
preponderance of evidence).  This was father’s right under the stipulated
visitation order in effect before father voluntarily suspended parent-child
contact.  We expressly do not reimpose that order, but leave it to the
parties and the family court to craft a new structure for visitation, one that
does not deny father his remaining parental rights.
Reversed and
remanded.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 39.        
JOHNSON, J., concurring.   While this Court has
demonstrated time and again that it is no slave to the principle of stare
decisis, it has also recognized that mere disagreement with how a case was
decided—particular one of relatively recent vintage—is not a sufficient basis
to deviate from a policy essential to certainty, stability, and predictability
in the law.  See State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055,
1056 (1997) (mem.) (“While not slavish adherents to stare decisis, we generally
require more than mere disagreement to overturn a decision, particularly one of
such recent vintage.” (citation omitted)).  The dissenting judge may
consider Mullin v. Phelps, 162 Vt. 250, 647 A.2d 714 (1994), to have
been decided “in error,” post, ¶ 46, but to advocate its reversal solely
because he remains unpersuaded by its reasoning is to invite an endless cycle
of decision and reversal should the next Court consider the abandonment
of Mullin to have been “in error,” and the Court after that to conclude
otherwise.  The folly of such an approach is self-evident.  Indeed,
it is telling here that none of the parties to this appeal has even challenged Mullin,
thus rendering the point of the dissent even more elusive and
inconsequential.   
¶ 40.        
Furthermore, all of the substantive arguments advanced by the dissent
were fully considered in Mullin, and nothing new or persuasive is
offered here to undermine its holding.  Thus, the dissent claims that no
governmental or constitutional interest warrants application of the
clear-and-convincing standard of proof in a private custody case regardless of
whether the court’s visitation order results in a de facto termination of
parental rights.  As discussed at length in Mullin, however,
decisions by the U.S. Supreme Court and others strongly suggest that
preservation of a noncustodial parent’s visitation rights in any context is a
constitutionally protected liberty interest requiring clear and convincing
evidence before it may be terminated in its entirety. 162 Vt. at 265-67, 647
A.2d at 723-24; see, e.g., Santosky v. Kramer, 455 U.S. 745, 747-48
(1982) (holding that parent’s right to raise child may be terminated only upon
clear and convincing proof that the child was neglected); Armstrong v. Manzo,
380 U.S. 545, 550 (1965) (concluding that failure to give noncustodial parent
notice of adoption proceeding violated due process); see also Hoversten v.
Superior Court, 88 Cal. Rptr. 2d 197, 200 (Ct. App. 1999) (reaffirming
principles that parent’s right to visitation in custody dispute is “so basic to
the human equation as to be considered a fundamental right” and that
“[i]nterference with that right should only be justified by some compelling
necessity” (quotations omitted)); McAlister v. Shaver, 633 So. 2d 494,
496 (Fla. Dist. Ct. App. 1994) (recognizing that noncustodial parent involved
in custody dispute has constitutionally protected inherent right to meaningful
relationship with his children); Johntonny v. Malliski, 588 N.E.2d 200,
201 (Ohio Ct. App. 1990) (holding that “noncustodial parent’s right of
visitation with his children is a natural right and should be denied only under
extraordinary circumstances” and by “clear and convincing evidence” (quotation
omitted)).  
¶ 41.        
The dissent also asserts that, unlike state-sponsored termination
proceedings, a custody dispute poses no potential imbalance in the competing
parties’ resources that might result in a higher risk of error.  As we
explained in Mullin, however, “the accused parent . . . may face a
former spouse who will do or say anything to obtain custody or to prevent the
other spouse from obtaining custody,” so that the risk of error is no less, and
in some cases may even exceed, that in a governmental proceeding.  162 Vt.
at 266, 647 A.2d at 723.  We noted, moreover, that the risk of error may
be substantial in a custody dispute due in part to the often imprecise nature
of sexual-abuse allegations and the absence of procedural protections otherwise
available in state-sponsored termination proceedings, such as assigned counsel
and separate adjudicative stages.  Id. at 266-67, 647 A.2d at 723-24.
¶ 42.        
The dissent also claims that there is no sound basis to “privilege” one
party over another in a custody dispute and further that the Mullin rule
results in rulings contrary to the best interests of the child.  Post,
¶ 52.  Again, we carefully considered and rejected these claims in Mullin. 
“In the final analysis,” we explained, it is the significant “interests of both
parents—the potential loss of parent-child contact and the countervailing
concern for the children’s safety,” that dictate the minimum standard of proof
tolerated by due process and that virtually compel the higher standard. 
167 Vt. at 267, 647 A.2d at 724.  And while the latter interest may be
protected in many cases by requiring closely supervised visitation, the accused
parent “should not be required to share equally the risk that the court ruled
wrongly in deciding whether to terminate parent-child contact.”  Id. 
As for the state’s paramount interest in protecting the welfare of the child,
the dissent cites no evidence whatsoever to support its bare assertion that Mullin
has operated to the detriment of children in general, or that a remand in this
case for consideration of a supervised visitation structure would be contrary
to the child’s best interests.    
¶ 43.        
As Justice Cardozo insightfully instructed, “when a rule, after it has
been duly tested by experience, has been found to be inconsistent with the
sense of justice or the social welfare, there should be less hesitation in
frank avowal and full abandonment.”  B. Cardozo, The Nature of the
Judicial Process 150 (1921).  This case presents precisely the
opposite scenario.  Nothing has appeared over the last seventeen years
indicating even remotely that Mullin has  undermined the public
welfare, wrought individual injustice, or impeded the administration of
justice.  Indeed, not one cogent reason has been produced to abandon a
precedent grounded in fundamental due process and the compelling state interest
in preserving the relational interests between parents and children.  The
dissent’s call to “reconsider the wisdom” of Mullin, post, ¶ 53,
thus rings distinctly hollow.
¶ 44.        
I am authorized to state that Justice Dooley joins this concurrence.

 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 
¶ 45.        
CRAWFORD, Supr. J., Specially Assigned, dissenting.  I
dissent from the majority decision because I disagree with the application of a
clear-and-convincing-evidence standard to family court decisions about
parent-child contact in divorce and parentage cases.  A higher standard of
proof is constitutionally mandated in cases in which the state seeks to deprive
an individual of a liberty interest so that the possibility of error is borne
more heavily by the state.  In disputes over custody and visitation
between individuals, however, the higher burden simply shifts the possibility
of error from one parent to another.  As explained below, because the
private interests are equally balanced, there is no compelling reason that one
individual should more heavily bear the burden of error. 
¶ 46.        
In Mullin v. Phelps, 162 Vt. 250, 647 A.2d 714 (1994), this Court
interpreted the Due Process Clause of the Fourteenth Amendment and Chapter 1,
Article 10 of the Vermont Constitution to require the family court to make
findings of sexual abuse by clear and convincing evidence before parent-child
contact can be denied to the non-custodial parent.  This ruling, largely
unprecedented at the time, extended a decision of the U.S. Supreme Court
requiring the higher standard of proof in termination of parental rights
cases.  See Santosky v. Kramer, 455 U.S. 745, 768 (1982)
(concluding that in termination cases an equal allocation of risk between
parents and the state is “constitutionally intolerable”).  Although this
Court has continued to enforce this higher standard of proof in cases in which
one parent seeks to effectively end the other’s parent-child contact, see Gabriel
v. Pritchard, 173 Vt. 452, 455, 788 A.2d 1, 5 (2001) (requiring clear and
convincing evidence of the child’s best interest before suspending a parent’s
right to visitation); Fournier v. Fournier, 169 Vt. 600, 603-04, 738
A.2d 98, 102-03 (1999) (mem.), I believe Mullin’s extension of Santosky
to private disputes was in error.
¶ 47.        
In government-initiated proceedings in which the interests of
individuals are particularly important, the purpose of requiring proof by clear
and convincing evidence as a matter of due process is to move the risk of
erroneous findings away from the individual and onto the state.  Thus, in
addition to cases concerning the termination of parental rights, the state must
meet the higher evidentiary standard in cases involving civil commitment,
deportation, and naturalization.  Few now question the wisdom and
constitutional necessity of limiting the police power of the state in these
cases by requiring a heightened level of proof. 
¶ 48.        
It is a very different matter, however, to favor the claims of one side
over another in a private custody dispute.  As the account of the facts
provided by the majority reveals, the burden of proof can greatly affect the
outcome of a case.  The evidence of father’s actions, including
inappropriate kissing, touching, and partial nudity over the course of many
years, supported the trial court’s conclusion that it was more likely than not
that he had sexually abused his daughter.  The trial court was scrupulous
in concluding that this evidence, as compelling as it appears in the paper
record, fell short of the clear-and-convincing-evidence standard in much the
same way that it evidently fell short of the proof-beyond-a-reasonable-doubt
threshold in father’s related criminal prosecution. 
¶ 49.        
What constitutional principle requires the family court to order
continued visitation in a divorce case when the evidence shows that it is more
likely than not that one parent has committed sexual abuse?  The
three-part test adopted by the U.S. Supreme Court in Mathews v. Eldridge,
424 U.S. 319 (1976), addresses the competing interests in cases initiated by
the state which may lead to the deprivation of an individual’s liberty or
property.  There are three factors identified in Matthews: “the
private interest that will be affected by the official action”; “the risk of an
erroneous deprivation of such interest through the procedures used”; and the
countervailing governmental interest in avoiding additional fiscal and
administrative burdens through substitute procedural requirements.  Id.
at 335.  The balancing of these factors dictates what types of procedural
protections due process requires.  
¶ 50.        
The presence of important private interests is misleading when we seek
to apply the constitutional test in a custody case.  In Mathews,
the private interest was the property interest of an individual in continuing
to receive social security disability benefits.  The state had a competing
interest at least as strong in terminating the benefits after an individual
recovered or returned to work.  These interests can be weighed against one
another and, if the individual interest is high enough, due process requires
the state to meet the higher burden of proof.  
¶ 51.        
In a custody case, there is no state interest to be balanced against
private interests.  In constitutional terms, the state has not taken any
action to deprive an individual of liberty or property because the state is not
a party and has no interest.  In contrast, both parents have strong
interests in the outcome of the case, but these are private interests which
cannot be weighed against some competing interest of the state.  There is
no constitutional basis for deciding that one parent’s interest in visitation
outweighs the other’s interest in safeguarding the child from abuse.  In
the balancing test required by decisions like Mathews, both parents’
interests appear on the same side of the ledger and should receive no greater
deference or protection.  
¶ 52.        
Finally, the Mullin rule is not necessary in Vermont given that
the relevant statutes already provide procedural protections and direct
judicial decision-making in custody disputes.  The “best interests of the
child” are paramount and the legislation sets out nine
factors to guide the court in determining these interests.  15 V.S.A. §
665.  Procedural due process is satisfied by a custody hearing in which
each parent has an equal opportunity to persuade the court that his or her
position on these factors is more likely true.  See In re Smith,
169 Vt. 162, 172, 730 A.2d 605, 612-13 (1999) (“Where substantial interests
exist on both sides, due process demands no more than an equal apportionment of
the risk of error, which the preponderance standard accomplishes.”).  As
this case demonstrates, the Mullin rule—privileging as it does the
evidence of one party over another—results in rulings which are contrary to the
best interests of the child.  
¶ 53.        
It is time to reconsider the wisdom of the Mullin decision. 
It arose out of a factual context in which the claims of abuse were highly
suspect.  The constitutional principle has not found support in the
decisions of other states.  And, most compellingly, in cases in which a
child’s word is offered against an adult’s, it can result in rulings which favor
contact with a probable abuser over safety for children. 
¶ 54.        
For these reasons, I respectfully dissent from the majority
opinion.  I would affirm the decision of the trial court. 

 


 


 


 


 


Superior Judge, Specially
  Assigned

 





[1] 
The record does not disclose the result of either referral to DCF.


[2] 
The family court found that the pictures were in existence “prior to February,
2006,” but that appears to be a mistake.  Mother testified credibly that
daughter had made several of the pictures before her first visit with the
psychologist, which took place in December 2004.  


[3] 
The dissent’s belief that Mullin v. Phelps should be overruled was not
raised, briefed, or argued by any party.  We do not address this issue.


[4] 
Father conceded at oral argument that it would not be in daughter’s best
interests to force her to visit with him if she is entirely unwilling to do so.



