Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-289

                                         APRIL TERM, 2012

 In re Appeal of J.P.                                  }    APPEALED FROM:
                                                       }
                                                       }    Human Services Board
                                                       }
                                                       }
                                                       }    DOCKET NO. R-10/10-492


                          In the above-entitled cause, the Clerk will enter:

        Petitioner J.P. appeals the Human Services Board’s decision affirming a substantiation of
child sexual abuse for acts committed against minor S.M. On appeal, petitioner argues that the
findings are not supported by the evidence, the hearing officer incorrectly applied the burden of
proof to the evidence, and the burden of proof was erroneously shifted to petitioner. We affirm.

       In May 2010, the Department for Children and Families (DCF) received a report that
S.M. had reported to a therapist a sexual assault by petitioner that had occurred three years prior,
when S.M. was eleven or twelve and petitioner was fifteen. Following an investigation, DCF
substantiated petitioner for child sexual abuse. After DCF declined to overturn the substantiation
upon review, petitioner appealed to the Human Services Board for a hearing.

        At the hearing, conducted by a hearing officer on behalf of the Board, S.M. testified to
the following. Petitioner lives in a nearby town, but his grandparents live next door to S.M., and
S.M. thought petitioner lived there with his grandparents at the time of the incident. At the time
of the hearing, S.M. was fifteen years old and petitioner was seventeen or eighteen. During the
time period preceding the incident, petitioner helped his uncle maintain a cemetery located
across the street from S.M.’s house; S.M. sometimes went over and helped them. On the
particular day of the abuse, a couple of months before S.M’s twelfth birthday, S.M. went into the
cemetery and ran into petitioner, who asked whether S.M. wanted to hang out with him while he
smoked a cigarette. Petitioner got into the truck that was parked near a river, and S.M. got in
next to petitioner. After he finished his cigarette, petitioner tried to kiss S.M.; when S.M.
resisted, petitioner restrained S.M. and forcibly put his hand down S.M.’s shorts and underwear,
touching S.M.’s vagina. After a few minutes, petitioner got out of the truck. S.M. ran after him
and hit petitioner. S.M. returned home and described a fight with petitioner to S.M.’s mother,
but did not tell her about the sexual assault. S.M. did not report the sexual part of the assault at
the time due to shame and embarrassment. Eventually, while at a hospital following an
overdose, S.M. could not keep the secret any longer and reported the incident to S.M.’s mother.

       A DCF social worker testified and described her investigation. She explained that she
and a police officer had conducted a videotaped interview of S.M. She also spoke to S.M.’s
mother, who recalled an incident when S.M. reported having a fight with petitioner. The officer
spoke with petitioner briefly, but the investigator did not.

        Petitioner testified and denied the allegations. He claimed that he did not have any such
encounter with S.M., and that, in fact, he had not had significant contact with S.M. since 2004—
well prior to the alleged incident. Petitioner testified that he never fought with S.M., never
touched S.M., and never attempted to kiss S.M. Petitioner, his mother and his uncle all testified
that during the time period in question, petitioner was never in the cemetery without his uncle,
did not and could not drive his uncle’s truck, and did not smoke.

        The hearing officer issued written proposed findings of fact. The hearing officer
explained that “[b]ased on the consistency and details of S.M.’s allegations and the absolute and
total denial of them by the petitioner, the case boils down to the inescapable conclusion that one
of them is being completely untruthful.” Based on the evidence and S.M.’s demeanor, the
hearing officer found that S.M.’s version of events was credible. As to petitioner, the hearing
officer explained that his account was consistent, but not persuasive. The hearing officer noted
that “lacking in the petitioner’s denials is any plausible explanation or reason why S.M. would
completely fabricate such an event.”

        At oral argument before the Board after the hearing officer issued recommended findings,
petitioner argued that the hearing officer’s findings were not supported by the evidence and they
inappropriately shifted the burden of proof onto petitioner. The Board adopted the hearing
officer’s recommended findings of fact and affirmed the substantiation. Petitioner then appealed
to this Court.

        This Court “will not set aside the Board’s findings unless they are clearly erroneous.” In
re E.C., 2010 VT 50, ¶ 6, 188 Vt. 546 (mem.). “In reviewing the sufficiency of the Board’s
findings, we will construe the record in a manner most favorable to the Board’s conclusions.”
Id. (quotation omitted).

          Petitioner first argues that the Board made findings that conflict with the entirety of the
evidence and are erroneous in light of the record. Specifically, petitioner claims that the hearing
officer’s finding that S.M.’s testimony was consistent is incorrect because S.M.’s statements
during the videotaped interview conducted during the investigation differed from S.M.’s account
at trial.

        The factfinder, not this Court, is charged with weighing the evidence and assessing the
credibility of witnesses. In re E.C., 2010 VT 50, ¶ 6. The Board’s credibility determination was
based on the evidence presented and the demeanor of the victim in the hearing. The Board’s
findings that S.M. gave consistent accounts of the assault and that any inconsistencies were
“minimal and inconsequential” were supported by the record.

        The alleged inconsistencies highlighted by petitioner are as follows: that S.M.
inconsistently described the details of the mechanics of the assault, the location of the truck
within the cemetery, the ownership of the truck (petitioner versus his uncle), and petitioner’s
status as a neighbor. Although petitioner points to minor differences in the way S.M. described
the way petitioner held S.M.’s arms during the assault, the Board did not abuse its discretion in
concluding that S.M.’s overall description of the assault in the interview and at trial remained


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consistent. In addition, at the hearing S.M. clarified the prior interview statements, explaining “I
was saying essentially the same thing—[petitioner] was holding both of my arms down with his
arm.”

        Likewise, the Board could reasonably conclude that the other alleged inconsistencies
were either not inconsistent or irrelevant. S.M.’s description of the perpetrator as a “neighbor”
was not inconsistent; although petitioner lived in another town, petitioner often stayed next door
to S.M.’s residence at his grandmother’s house. Similarly, S.M.’s testimony that the truck was
parked by a mound of dirt facing a stream could be viewed as consistent with the statement
during the initial interview that the truck was located next to the river. Finally, S.M.’s statement
that petitioner was standing next to “his” truck when in fact S.M. later identified the truck as
belonging to petitioner’s uncle was inconsequential in that S.M. consistently identified the same
truck as the one in which the assault occurred. Therefore, S.M.’s testimony was largely
consistent, and we are not persuaded that the Board erred in concluding that the minor
discrepancies did not fundamentally undermine the credibility of S.M.’s testimony.

        Petitioner also contends that the Board’s findings are contradictory and unsupported
because the Board found petitioner and his witnesses to be credible, yet dismissed their
testimony without comment. We disagree. First, although the Board found petitioner testified
“consistently,” its findings do not indicate that it found petitioner credible. In fact, the logical
inference from the Board’s analysis—that either the petitioner or S.M. was being untruthful, and
that S.M.’s testimony was credible—is that the Board did not find petitioner’s testimony as
credible. Second, the Board noted that the testimony of petitioner’s witnesses did not
“necessarily rule out the possibility that [petitioner] and S.M. could have been alone in the truck
on the particular day in question.” Finally, our job is not to reweigh the evidence, or to compare
S.M.’s and petitioner’s credibility. See Highgate Assocs. v. Merryfield, 157 Vt. 313, 315 (1991)
(“A finding will not be disturbed merely because it is contradicted by substantial evidence;
rather, an appellant must show there is no credible evidence to support the finding.”).

        Next, petitioner argues that the hearing officer incorrectly applied the evidence to the
burden of proof. Petitioner essentially argues that DCF’s evidence was not substantial enough to
meet its burden as it was based solely on S.M.’s testimony, which petitioner contradicted. This
argument is not about “the sufficiency of the evidence, but rather goes to the credibility of the
witness and the weight of the evidence, matters which are entirely within the province of the
[factfinder].” State v. Hinchliffe, 2009 VT 111, ¶ 22, 186 Vt. 487. As petitioner recognizes,
“[t]he case for DCF essentially boils down to whether or not you believe the victim.” While
petitioner obviously disagrees, the Board found that S.M.’s account of the events was more
credible and we will not second-guess that determination on appeal. Id.

        Finally, petitioner argues that the Board violated petitioner’s right to a fair hearing by
shifting the burden of proof onto petitioner. Petitioner claims that the Board essentially
burdened him with proving that S.M. was lying. In support, he points to the Board’s statement
that petitioner failed to present any credible evidence to demonstrate why S.M. would fabricate
such a story. We conclude that the Board did not improperly shift the burden of proof. At the
outset of its decision, it acknowledged that the issue was whether a preponderance of the
evidence established that the incident took place. In later noting the absence of any credible
evidence as to why S.M. had a motive to lie, the Board was merely responding to petitioner’s



                                                 3
challenges to S.M.’s credibility; it was not suggesting that petitioner had an affirmative burden to
disprove the Department’s case.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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