DeSantis v. Pegues
35 A.3d 152, 2011 VT 114, 190 Vt. 457 (2011)
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Rule of Law:
To effectively terminate a parent’s right to contact with their child based on allegations of sexual abuse, a court must find evidence of such abuse by a clear and convincing standard; a finding by a mere preponderance of the evidence is insufficient to justify an order that effectively halts all parent-child contact.
Facts:
- Father and Mother married in 1991, adopted their daughter in 1996, and separated in July 2004.
- Mother expressed concerns about Father's drinking and "physical boundary" issues, noting his intense physical play with daughter, which included tickling to tears, grabbing ankles, sucking toes, and prolonged "soulful" or "passionate" kisses.
- Mother found Father asleep in daughter's bed with his hand on her bare buttocks on one occasion.
- Father outfitted a narrow closet in daughter's bedroom at his condominium, which daughter called the "secret closet" and where she testified they played a game called "How naked can you get?" that made her uncomfortable.
- In October 2005, daughter, through animal-character role-play, described "Father Rabbit had a long hard tail" and would "give Little Rabbit medicine that made her sleepy," and showed how she held and squeezed Father Rabbit's tail.
- Daughter made drawings depicting frowning and crying rabbits, two rabbits with tails touching, and a large figure standing over a small rabbit on its back, which she later explained were about Father being "disgusting and doing all this like gross stuff to me," referring to "[t]ouch[ing] me in the wrong places."
- During an unsupervised visit in a motel room, Father was found shirtless over daughter's bed after she had a nightmare, despite promising to remain clothed.
Procedural Posture:
- Mother and Father separated in July 2004.
- Mother filed a motion to modify the Vermont visitation order in a New York court in February 2006, which was dismissed for lack of jurisdiction.
- Mother filed again in Vermont in May 2006, requesting the court to relieve Dr. Hasazi of his oversight role.
- The family court held two days of hearings on Mother’s motion in August 2006.
- Father, on advice of counsel, filed a stipulation for his parent-child contact to be voluntarily suspended on August 8, 2006, which the family court approved.
- Father was charged with felony aggravated sexual assault of his daughter on October 19, 2006, but the State dismissed the charges with prejudice after an eighteen-month investigation.
- 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.
- The family court decided in November 2008 that Vermont courts would retain jurisdiction and treated Father’s motion to dissolve as a motion to modify.
- Father subsequently filed a motion to modify contact, leading to a hearing where multiple witnesses and experts testified.
- The family court found sufficient evidence to support a finding of sexual abuse by a preponderance of the evidence, but not by clear and convincing evidence, and denied Father's motion to reinstate contact, conditioning any future contact on specific actions by Father.
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Issue:
Does a family court's finding of child sexual abuse by a preponderance of the evidence, coupled with conditioning future parent-child contact on terms that effectively prevent it, constitute an impermissible termination of parental rights without meeting the clear and convincing evidence standard?
Opinions:
Majority - Skoglund, J.
Yes, a family court's order based on a preponderance-of-evidence finding of sexual abuse, which effectively terminates parent-child contact by imposing unworkable conditions, is an impermissible termination of parental rights that requires a clear and convincing evidence standard. The Court affirmed that there was sufficient evidence to find sexual abuse by a preponderance of the evidence, which satisfied the jurisdictional threshold to review modification of contact under 15 V.S.A. § 668 (requiring a "real, substantial and unanticipated change of circumstances"). However, the Court reversed the family court's visitation order because the conditions placed on Father's future contact (requiring him to demonstrate commitment to support daughter's therapy and work collaboratively with her therapist) effectively terminated his parental rights without meeting the clear and convincing evidence standard required by Mullin v. Phelps. The Court emphasized that 15 V.S.A. § 650 promotes maximum continuing contact with both parents unless direct physical or significant emotional harm is likely, and absent clear and convincing evidence of detriment, contact cannot be entirely halted. The case was remanded for the family court to craft a new visitation structure that does not deny Father his remaining parental rights, potentially including supervised visitation.
Dissenting - Crawford, Supr. J.
No, the clear and convincing evidence standard should not apply to family court decisions regarding parent-child contact in private disputes, as it inappropriately shifts the risk of error from one parent to another without a compelling state interest. Justice Crawford argued that Mullin v. Phelps incorrectly extended the clear and convincing standard, which is constitutionally mandated for state-initiated proceedings depriving an individual of a liberty interest (like termination of parental rights, as in Santosky v. Kramer), to private custody disputes. He contended that in private disputes, both parents' interests are private and balanced, and there is no state interest to weigh, making the lower preponderance-of-the-evidence standard appropriate under the Mathews v. Eldridge balancing test. He concluded that the "best interests of the child" standard (15 V.S.A. § 665), guided by the preponderance standard, would be better served, and that Mullin should be reconsidered and overruled because its rule results in rulings contrary to the best interests of the child.
Concurring - Johnson, J.
No, the Court should not overturn Mullin v. Phelps because the principles of stare decisis require more than mere disagreement with a past decision, and the parties did not even challenge Mullin's validity. Justice Johnson defended Mullin's rationale, stating that a noncustodial parent's visitation rights are a constitutionally protected liberty interest requiring clear and convincing evidence for termination, citing Santosky v. Kramer and other cases. He also reiterated Mullin's reasoning that the risk of error in private custody disputes, particularly with sexual abuse allegations, can be substantial due to the imprecise nature of allegations and lack of procedural protections. He emphasized that the significant "interests of both parents" (the potential loss of parent-child contact and the countervailing concern for the children’s safety) dictate the minimum standard of proof tolerated by due process, and that Mullin's application of the higher standard protects the accused parent from an equal share of the risk of an erroneous ruling on termination, ultimately serving the child's best interests.
Analysis:
This case reinforces the high bar for terminating parental contact in Vermont, establishing that while a lower evidentiary standard (preponderance) can trigger review for modification, a much higher standard (clear and convincing) is required to effectively terminate that contact, even indirectly through conditions. It highlights the tension between protecting children from abuse and preserving fundamental parental rights, ensuring that due process safeguards are met before a parent is stripped of their relational interest with a child. Future cases will need to carefully distinguish between modifying contact (which can be based on a preponderance of evidence and the child's best interests) and outright termination of contact, which demands stringent proof of harm and demonstrably workable conditions for reinstatement. The ruling underscores the importance of crafting visitation orders that are practical and do not inadvertently strip a parent of rights without constitutionally adequate proof.
