Chase v. Bowen

• Decision Date: 08 February 2008
• Docket Number: No. 06-393.,06-393.
• Citation: 2008 VT 12,945 A.2d 901
• Parties: Maureen CHASE v. Brian J. BOWEN.
• Court: Vermont Supreme Court

945 A.2d 901

2008 VT 12

Maureen CHASE v. Brian J. BOWEN.

No. 06-393.

Supreme Court of Vermont.

February 8, 2008.

Michelle Kainen of Michael Kainen Attorney at Law PC, White River Junction, for Plaintiff-Appellant.

Brian J. Bowen, Pro Se, Thetford Center, Defendant-Appellee.

Alexander W. Banks and Jonah Adley, Legal Intern, South Royalton Legal Clinic, South Royalton, for Minor Children.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. BURGESS, J.

Mother appeals the family court's order awarding father sole legal rights and responsibilities and her sole physical rights to their two boys, and granting father unsupervised contact with the boys every other week. Mother contends that the court erred in: (1) admitting father's expert testimony on investigative techniques and giving it greater weight than the testimony of the state investigator; (2) allowing father to move for sole custody halfway through the hearing without advance notice; (3) failing to order father to undergo a psychosexual evaluation; (4) denying mother's request to call father's former lawyer as a witness; (5) failing to adequately protect the children from the risk presented by father; (6) relying on unsupported findings in its best-interest analysis; and (7) awarding shared custody in violation of the statute. The boys' attorney joins in mother's appeal on the issues of notice and evaluation, and also claims error in what is described as the family court's failure to recognize and remedy the risk to the children. We affirm.

¶ 2. The court found the following facts. The parties were married in 1996. At that time, mother had a nine-year-old daughter from a previous marriage. Father assumed an active parental role in stepdaughter's life from the beginning. The parties had two boys of their own during their marriage, born in 1997 and 1999. Following the parties' separation in 2000, both parents shared parenting and remained active in all of the children's lives. The final divorce order, issued in February 2002, granted the parties shared legal and physical rights and responsibilities to the two boys. The order granted father physical contact three days a week and mother four days a week. Following the divorce, all three children spent time in both households and the parties maintained good relations and cooperated in making joint decisions.

¶ 3. In June 2004, stepdaughter, who was then sixteen, disclosed to mother's then-boyfriend that her stepfather had been molesting her for a number of years. She alleged that some of the abuse occurred while her younger brothers were asleep in the same room. After mother learned of the allegations, she contacted a lawyer, the Department for Children and Families (DCF) and the state police. DCF conducted an investigation in conjunction with the police and, based on stepdaughter's allegations, interviews of people at stepdaughter's school and police interviews of father, DCF "substantiated" the allegations as true.¹

¶ 4. DCF advised mother to take protective measures on behalf of the boys. Mother filed for a relief-from-abuse order, and moved to modify parental rights and responsibilities. Father did not see the boys for about a month and then had limited supervised contact with them. Father filed a motion to amend the temporary contact schedule so he could spend more time with his sons.

¶ 5. The court held a hearing on March 17, 2006 to consider temporarily altering the parent-child contact schedule pending a final hearing. At the temporary hearing and thereafter, father represented himself and testified on his own behalf. Mother was represented and also testified. The boys were represented by their own attorney. All parties stipulated that the evidence offered at the temporary hearing would become part of the record for the final hearing. Among other witnesses, the court heard testimony from the DCF investigator. The investigator testified that DCF had "substantiated" the abuse, following its investigation. The investigator also recommended that father undergo a psychosexual evaluation to ascertain the risk he posed to the boys. The court granted father parent-child contact every other weekend from Friday afternoon until Monday morning, and on the intervening weekend from Friday afternoon until Saturday morning or early evening, depending on mother's work schedule. The order required supervision from 7 p.m. until 7 a.m. The court also granted father unsupervised contact with the boys before and after school.

¶ 6. On August 1, 2006, the court held a final hearing on mother's motion to modify parental rights and responsibilities. At the beginning of the hearing, father stated he had no outstanding custody motion, and all parties agreed that the only matter before the court was mother's motion to modify. In addition, the parties stipulated that the threshold requirement for a change of circumstances had been met based upon the allegations of abuse, the resulting family disruption and the inability of the parties to communicate.

¶ 7. Stepdaughter testified that, starting when she was eleven, father would sexually molest her while she slept, and later when she showered, to the point of digital penetration and attempted sexual intercourse. Such incidents occurred, explained stepdaughter, before and after her parents separated, and at times when her two brothers were either asleep in the same room or in another room in the same house. Stepdaughter testified that she told a friend, but that she was too scared to tell mother when the abuse was happening. Stepdaughter acknowledged that the night before she disclosed the abuse she was out late without permission and her father had to pick her up.

¶ 8. Father testified, denying that he ever sexually abused stepdaughter and proffering several reasons why she would lie about the abuse. Father posited that she concocted the allegations to avoid discipline because he was going to tell her mother that she was out late and was "stoned." Father also thought that stepdaughter resented his discipline, and wanted to cut off contact with him. Father accused mother of encouraging stepdaughter to lie, on a theory that mother wanted to obtain child support and also benefited from the charges by receiving the assistance of a free attorney in family court.

¶ 9. At the close of the hearing, both mother and the boys' attorney requested that father undergo a psychosexual evaluation. Pertaining to this request, we note that stepdaughter's and father's testimony was the only evidence of whether stepfather sexually abused stepdaughter when her brothers were sleeping in the same room or house. Presumably in support of the abuse allegation, mother introduced the DCF investigator's testimony crediting stepdaughter's allegations of the abuse, but the relevance of such substantiation remained unexplained. DCF's belief that stepdaughter had been abused was not evidence of the abuse and was no more probative than the finding of probable cause presumably underlying the parallel criminal proceeding. Mother's interest in having the court order father to undergo a psychosexual evaluation presumably reflected the DCF investigator's testimony that, based on her belief of the accusation, father should be assessed for risk to the boys.

¶ 10. The court issued oral findings from the bench, reviewing the statutory factors and conducting a best-interests analysis. See 15 V.S.A. § 665(b) (listing the statutory best-interests factors). The court found the parties equally qualified under six factors, insofar as both parents had a loving relationship with the boys, were actively involved in their lives, were able to foster a positive relationship with the other parent, acted as primary care-givers, and were connected to other family members important to the children. See id. § 665(b)(1), (b)(4)-(8). The court also found both parents equally capable of providing for the children's needs and a safe environment, see id. § 665(b)(2), while recognizing that safety with father would be compromised if the allegations against him were true.

¶ 11. The court favored father over mother regarding "the ability and disposition of each parent to meet the child's present and future developmental needs." See id. § 665(b)(3). On this factor, the court found father more actively involved in the boys' development, particularly through his interactions with schools, teachers and physical activities. Further, the court found that father's decisions tended to be slightly more child-centered than mother's and that father concentrated on providing consistency and exposing the boys to positive role models. The court noted that mother was also involved, but that father took a greater leadership role in these matters and was more committed to holding the boys accountable for their behavior.

¶ 12. On the final factor, "evidence of abuse . . . and the impact of the abuse on the child and on the relationship between the child and the abusing parent," id. § 665(b)(9), the court's resolution was mixed. Acknowledging that stepdaughter's abuse allegation was central to the case, the court found that the DCF investigation was not thorough or reliably done, and concluded that the allegations have neither been proved nor disproved, that [stepdaughter's] testimony is very credible . . . . [Father's] testimony is also credible and the Court having considered all of the evidence does not find that the burden of proof has been met to conclude that the things that have been described happened as they have been described.

Even though not persuaded that the abuse occurred, the court nevertheless concluded that "the evidence shows that there may be a risk" based on the unresolved possibility that the abuse could have occurred as alleged. Inconclusively, the court considered that if there was a risk, it was defined by stepdaughter's testimony and limited to the possibility that father could have inappropriate...