DeSantis v. Pegues

• Citation: 35 A.3d 152,2011 VT 114
• Decision Date: 07 October 2011
• Docket Number: No. 10–178.,10–178.
• Court: Vermont Supreme Court
• Parties: Ann Marie DeSANTIS v. John E. PEGUES.

2011 VT 114

35 A.3d 152

Ann Marie DeSANTIS

v.John E. PEGUES.

No. 10–178.

Supreme Court of Vermont.

Oct. 7, 2011.

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.

SKOGLUND, J.

¶ 1. 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...