Friday, October 28, 2011

A Simple Point of View


DeSantis v. Pegues, 2011 VT 114

Our perceptions of a scene often depend in large part upon the perception of the people populating the story.  Think for a moment about the story of a mugger.  Imagine Robert De Niro playing the mugger.  Now think of Owen Wilson playing the same criminal.  Now think of Will Ferrell in the role. 

Chances are that you saw three very different muggers and very different stories.  No doubt it went from a brooding, scary drama, to a whimsical romance, to an absurdist comedy.  Your perception of the stakes also shifted from serious to farce. 


This exercise extends beyond the media and stories that we use to entertain to the basic fabric of reality.  How we treat people is—particularly in the court system—in no small part a function of how we perceive them and their problems.  Giving the punishment warranted by a harmless clown, like Will Ferrell might play, to a hardened criminal of the De Niro archetype is practically the textbook definition of injustice.  But as experience and art teach us again and again, perception of others is a constantly shifting proposition.  As Walker Percy said, we are lost in the cosmos and have an innate difficulty recognizing ourselves and others for who we really are. 

Family law, particularly in a case like this one, rides this dilemma like no other.  Your perception of the father in today’s case and the judgment of the SCOV will likely depend more on your perception of him, than on any objective sense.

Father and mother in today’s case were married in 1991 and adopted a daughter five years later.  The couple divorced in 2004.  Father left the house, but participated with mother in an informal visitation schedule.  Mother refused to allow overnight visits because of concerns about father’s drinking problem.  That, as it turns out, was the tip of the iceberg.

Father seems to have had personal boundary issues with the daughter and engaged in a lot of physical touching.  During the marriage, the activity was frequent but not particularly alarming.  Father did a lot of tickling.  Father and daughter kissed each other’s bellies and made slurping sounds.  Father would sometimes fall asleep in bed with daughter.  But with each, there were ominous signals.  The tickling went beyond laughter to the point of tears.  The kissing grew more soulful and passionate and grew to include sucking on her toes.  When father snuggled with daughter, his hand inevitably strayed to her bare buttocks.

Soon after the initial separation, daughter told mother about father’s “secret closet,” a windowless room off his bedroom with a bean bag chair, a sleeping bag, and toys.  Daughter reported that father would take her into the room to touch her, tickle her, and play games such as one called “How naked can you get?”  This game consisted of father taking off his clothes and then taking off daughter’s.  The record does not indicate how either side kept score.

During this time, mother sought counseling for daughter who was depressed about the parents’ pending divorce.  During these therapy sessions with a social worker and a psychologist, neither expert detected any evidence of sexual abuse.  Daughter expressed a strong desire to spend time with her father.  The psychologist referred the case to the Department of Children and Families for investigation, but he did so simply out of an abundance of caution rather than any particular evidence. 

In January 2005, mother hired an expert in forensic psychiatry to treat her daughter.  This expert observed daughter at father’s house and made two recommendations to father.  Get rid of the “secret closet,” and get counseling for your boundary issues.  Father complied, and by May 2005, the expert recommended that father should move up to the next level of unsupervised overnight visits. 

According to mother, this visit did not go well.  Daughter came home upset and anxious, but the evidence was inconclusive, and the expert could not form an opinion that sexual abuse had occurred.  In October, daughter began drawing pictures of rabbits with long, hard tails between their legs.  The little rabbit would hold and squeeze these long tails, and daughter said that she was the little bunny.  At the same time, mother received a job offer in Rochester, New York where she and daughter moved.  Once in New York, mother contacted the New York Child Protective Services, who opened an investigation.

Around New Year’s Day, father had another scheduled visit and overnight with daughter.  Father and his new girlfriend came out to Rochester, and daughter joined them in the hotel for an overnight on a spare bed.  In the middle of the night, daughter had a nightmare and awoke to see that father was standing over her, naked from the waist up.  Father apologized and quickly put on a shirt.  Following this visit, the expert psychiatrist discontinued any further overnight visits. 

In March 2006, mother also retained a social worker who after a 20-minute conversation with daughter got her to admit what she had not admitted before: that her father was sexually abusing her.  From this report, the New York investigators concluded that there was some evidence of abuse and forwarded the investigation on to the Vermont State Police and the Washington County State’s Attorney’s Office. 

In October father was charged with felonious sexual assault.  At the same time, father stipulated to voluntarily ending any visitation with daughter until the criminal matter was resolved. 

Eighteen months later, following an investigation, the criminal charges were completely dropped.  Father filed a petition to end the stipulation and to re-start his visitation rights.  At the hearing, mother brought the sexual assault evidence before the court along with father’s long history of inappropriate touching and bad decisions (I mean c’mon, a secret closet?  R.Kelly is not the person you want to be modeling in this situation).  Both sides put on expert witnesses to testify about sexual abuse and the suggestible nature of a child’s memory.  While the witnesses came to different conclusions, they agreed that the New York social worker had not done a good job and possibly coaxed a false confession out of daughter. 

Nevertheless, the trial court found that while the evidence of sexual abuse did not rise to a criminal standard of proof or the clear and convincing level needed to terminate all parent–child contact, it was sufficient to find a change of circumstance, which would allow the court to re-visit the custody agreement. 

This meant that the trial court got to go to the nine statutory elements that defining the best interest of the child.  The trial court found that eight of them favored the mother in light of the evidence of abuse.  It then ruled that father need to stay away from daughter.  Visitation and contact could only resume if and only if he showed a commitment to daughter’s therapy and worked in cooperation with her therapists. 

Father appeals this decision to the SCOV on three bases.  First, he argues that there was not enough evidence to support a finding of sexual abuse.  Weird behavior, perhaps, but not abuse.  Second, he argues that the trial court’s order was essentially a termination of his parental rights, which is wrong in light of the trial court’s explicit finding that the evidence did not rise to the level needed to establish a basis for termination.  Third, he argues that the SCOV should remand to the trial court with direction to reinstate his visitation rights.

The SCOV tackles the first issue concerning nature of the evidence.  Since the father is trying to overturn the trial court’s factual findings, he is fighting an uphill battle.  The SCOV is deferential on such issues and only overturns the trial court if there is clear error.  Here there is plenty of evidence to support a basic finding of sexual abuse, and the SCOV does not hesitate to affirm. 

Father has more luck with his second argument.  The problem with the trial court’s ruling—that parental contact can only resume if he cooperates with daughter’s therapist—is that there is no evidence that the therapist or mother will support or cooperate with father.  Furthermore, there is no way for the trial court to make the therapist cooperate.  Given the high threshold required to revisit this order, the SCOV finds that father’s rights to visit with his daughter would be effectively terminated.  On this basis, the SCOV reverses and remands to the trial court. 

At the same time, this is a light rap on the knuckles of the trial court.  The SCOV is remanding, but it addresses father’s final argument noting that the trial court went through the proper process.  It just hedged and came out with the wrong result.  According to the SCOV, nothing in the decision should cause the trial court to either reinstate the parents’ prior visitation arrangement or lessen any of the precautions it has determined necessary to protect the daughter.  The only issue for the trial court should be creating a condition that gives father a reasonable ability to have some contact over time with the daughter.

The SCOV, though, is not quite done.  Justice Johnson, who is joined by Justice Dooley, files a concurring opinion, which is essentially a retort to the dissent. 

The dissent, penned by Judge Crawford, sitting on the SCOV by special assignment, takes issue with the whole standard of clear and convincing evidence to terminate parental visitation rights.  For the dissent, there is no higher process due, and the standard puts an unfair burden on parents trying to protect their children from predatory parent.  For the dissent, the higher standard is not needed and only creates absurdities such as today’s decision where the SCOV reverses to give a parent, who likely committed sexual assault on the child, further opportunities to be with her.

The concurrence believes that the dissent misses the point.  Family law cases are messy and subjective.  The opportunity to manipulate and seed the issues is there.  One parent screaming abuse can put the other one on the hot seat.  The higher standard protects those innocent and not-so-innocent parents who, nevertheless, have some good and redeeming qualities.  It is a warranted protection for a serious issue. After all, the court’s perception of a parent—especially where the evidence is mixed—may be more a perception of the person’s character than anyone wants to admit.

So the standard remains the same, and the parties return to court.  A few more years of litigation and daughter may be able to move out and start her own life.

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