Groves v. Green

• Decision Date: 09 September 2016
• Docket Number: No. 2015-444,2015-444
• Citation: 2016 VT 106
• Court: Vermont Supreme Court
• Parties: Charles Groves v. Tasaday Green

2016 VT 106

Charles Groves v. Tasaday Green

No. 2015-444

Supreme Court of Vermont

May Term, 2016

September 9, 2016

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Windham Unit, Family Division

Katherine A. Hayes, J.

James A. Valente of Costello, Valente & Gentry, P.C., Brattleboro, for Plaintiff-Appellant.

Jean Anne Kiewel of Jean Anne Kiewel, PC, Brattleboro, for Defendant-Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. DOOLEY, J. Father appeals an order from the Family Division, that awarded mother sole legal and physical parental rights and responsibilities but did not award father any parent-child contact at the time. The order contained a provision permitting father to file a motion for parent-child contact, even without any change in circumstances, within forty-five days after the pending criminal charges against him had been resolved. On appeal, father contends that: (1) the court effectively terminated his parental rights without finding by clear and convincing evidence that doing so was in the best interests of the children; and (2) that the court erred in creating a prerequisite to the resumption of contact—that is, the resolution of the criminal charges—beyond his control. We affirm.

¶ 2. Father filed a parentage action on March 19, 2015. On April 8, 2015, mother filed a stipulation of parentage and a motion that she be granted sole parental rights and responsibilities for the children and that father be denied any right to parent-child contact pursuant to 15 V.S.A. § 665(f). A hearing on the parties' parental rights and responsibilities was held on June and August 2015. Both parties were present and represented by counsel. Because of the allegations made by the mother in her motion, both parties agreed that the mother should present her evidence first, and father would present his evidence second.

¶ 3. According to the testimony of both parties, they met in the fall of 2005 and moved into an apartment together in January 2006, remaining together until February 28, 2015. Both parties stipulated that they were the biological parents of L.G., born in October 2008, and C.G., born in November 2006.

¶ 4. Mother testified that she continued in the relationship because she was physically and psychologically coerced to do so and that she felt she had "no choice." Mother testified that father repeatedly forced her to overconsume alcohol and attempted to force her to use marijuana, contrary to mother's wishes. Mother stated that she was intimidated by father's statement that he was mentally disabled and living in a halfway house. After father was forced to leave his place of residence, mother said she felt that she had to let him move into her apartment in Saratoga Springs. In testimony that the trial court characterized as credible, mother stated that father was often drunk during the first years of their acquaintance. According to mother, she repeatedly told father that she did not want a relationship with him, but he did not desist from his advances. When mother attempted to call the police, father took the phone away from her. Mother further stated that father boasted of assaulting his stepfather and of his status as a registered sex offender, which he received after having sex with a sixteen-year-old girl.

¶ 5. Mother testified that her sexual relationship with father was wholly coerced and that father physically abused her from the beginning of their relationship, with a succession of assaults occurring between November 2005 and January 2006. Mother described an instance where she ran away from father, who caught her and knocked her down in the street, resulting ina large abrasion and scab. On one occasion, mother succeeded in fleeing to a friend's apartment, but did not seek help from the police. On another occasion, father reportedly dragged mother across a parking lot by her backpack. Finally, father once assaulted mother and locked her in a closet, where her screams were overheard by a neighbor who called the police. The trial court supplemented this testimony with its own observations, noting that father is physically much larger than mother, whom the court characterized as "slender and . . . frail," while describing father as "muscular and strong."

¶ 6. Father pled guilty and was convicted of third-degree assault with intent to cause physical injury to mother on February 3, 2006. He was placed on probation for three years as a result of his conviction. C.G. was conceived at some point around the time of the conviction.

¶ 7. Mother also outlined the high degree of control father exercised over her life: father would walk her to work every day, spend time at the Saratoga Springs Starbucks coffee shop where she worked (until barred from doing so by coffee-shop management), and meet her there after work. Father rarely left mother alone, and mother did not go to the police or tell others about her physical abuse, testifying that she felt trapped. Mother was afraid that father might injure their children, and she stayed with him to protect the children. Mother also stated that she feared that father's mother would take custody of the children, though she did not explain this sentiment. The court found that mother was the primary caregiver for the children, and had homeschooled them for their entire lives.

¶ 8. In the spring of 2008, the parties moved to Brattleboro to be closer to mother's family. Prior to the move, mother wrote a supportive letter about father addressed to father's probation officer. Mother also met with the probation officer, because father needed the officer's permission to leave New York State. Mother stated that her letter was not truthful and that she had written it only out of a desire to move to Vermont, where she had friends and family and believed she had a better chance of exiting the relationship. After the move, father began workingat the Brattleboro Food Co-op, where he has worked consistently since. The court found father to be the primary breadwinner for the family since the move, noting that his earnings were put in a bank account to which mother did not have access, limiting her options for leaving the relationship. Mother also began attending classes at Greenfield Community College for the 2010 academic year, despite father's disapproval. She attended classes for approximately three hours a day for three days a week, leaving the children in father's care during this time. Mother testified that in the months before their separation, father was often too rough with C.G. when they played, hurting him when they wrestled and throwing him over his shoulder. Mother also began working as a tutor for up to 10 hours per week beginning in the spring of 2014. While not commuting, attending class, or tutoring, she spent all of her time with the children. This pattern continued until the parties separated in February 2015.

¶ 9. Mother testified that on February 28, 2015, she was studying in her room when father attempted to coerce her into smoking marijuana. Mother resisted, and father became angry, yelling and throwing mother's books against the wall, damaging it. Mother testified that L.G. was standing nearby when this happened and could have been injured. Mother attempted to call 911, but father took the phone away from her. L.G. attempted to call from another phone downstairs, but father followed and took that phone away, throwing it down on the floor and breaking it. Mother testified that both children shouted at father to leave. Father eventually did leave, staying for several days with a friend, and then returned, after which mother and children went to stay with the children's maternal grandmother.

¶ 10. After leaving the home, mother obtained a temporary relief-from-abuse (RFA) order against father, and the parties agreed to a "no findings" final RFA order on March 18, 2015. That order gave mother parental rights and responsibilities and barred father from having contact with the children, pending a subsequent parentage action.

¶ 11. As a result of mother's allegations of abuse arising from the incident on February 28, father was arraigned on April 8, 2015, on charges of domestic assault and interference with emergency services. Father was barred from having any contact with mother or children as part of the conditions of release in that criminal case. Due to father's prior conviction for assault in New York, the first count of domestic assault was amended to a felony charge of aggravated domestic assault, second degree. On August 24, 2015, the State filed additional charges in the same case alleging aggravated sexual assault, based on repeated, nonconsensual acts between 2011 and 2015 and a violation of an abuse prevention order on July 21, 2015. Father was arraigned on the new charges on September 17, 2015. At the time of the Family Division hearings in this matter, father's criminal charges were still pending with a hearing set for January 21, 2016, and conditions of relief in the RFA order remained in effect. In order to preserve his Fifth Amendment rights in his criminal case, father ended testimony in the Family Division after hearing of the new felony charges, and his testimony was struck from the record and not considered in the Family Division's findings.

¶ 12. According to the docket entries in the criminal case, father's criminal charges were resolved on May 12, 2016.¹ He pled guilty to one misdemeanor count of domestic assault, one misdemeanor count of interference with access to emergency services, and one felony count of second or...