Mullin v. Phelps
| Decision Date | 24 June 1994 |
| Docket Number | No. 93-143,93-143 |
| Parties | Stephen MULLIN v. Rita (Mullin) PHELPS. |
| Court | Vermont Supreme Court |
Cortland Corsones and Therese M. Corsones of Corsones & Corsones, Rutland, for plaintiff-appellant.
Alan Rosenfeld, Montpelier, for defendant-appellee.
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
In this appeal, we review a family court order that transfers custody of the parties' two children from plaintiff father to defendant mother and that completely cuts off all contact between the father and his sons unless he acknowledges abusing them. The basis of the order is the court's conclusion that a preponderance of the hotly disputed evidence presented by the warring parties indicated that the father sexually abused the younger boy. We conclude that the court did not abuse its discretion in transferring custody of the children to the mother, but that due process precluded the court from effectively terminating parent-child contact between the father and his sons based on a finding of sexual abuse by a mere preponderance of the evidence. We hold that, as a matter of due process, the family court may terminate parental rights only if the evidence supporting the decision is clear and convincing, a standard that was not remotely satisfied in this case. We also conclude that the part of the court's order conditioning future parent-child contact on the father acknowledging that he sexually abused his son must be stricken because it violates the father's privilege against self-incrimination. Accordingly, we remand the matter for the family court to fashion a visitation order that comports with due process and that is consistent with the principles discussed in this opinion.
We detail the events surrounding the various proceedings in this protracted, acrimonious custody battle in order to place the family court's most recent decision in the proper perspective. 1 The parties separated in 1986 after a tumultuous eight-year marriage that produced two children. At that time, the children, Jeremy and Kyle, were six years old and one year old, respectively. Following the separation, the children lived primarily with the father. In November 1987, in response to a court-ordered evaluation in the divorce proceeding, the Vermont Children's Aid Society recommended that the children remain in the custody of the father and his new wife, based on its conclusion that joint custody was not feasible because neither party was able to place the children's welfare above the resentment and anger they felt towards each other. Nevertheless, based on the parties' stipulation, the court ordered joint custody, with the father and his wife having primary physical custody.
In 1989, the father sought full legal and physical responsibility for the children. The mother responded by alleging that the father had physically abused them. Based on numerous interviews with the parties and the children, the Champlain Valley Psychiatric Services found no evidence of physical abuse; indeed, it concluded that physical discipline occurred more often in the mother's home. As had previous evaluators, the two clinical psychologists and social worker noted that the children were integrated into the father's home, but that the older child, Jeremy, appeared to be highly stressed as the result of the continuing conflict over custody. The team recommended that the father be awarded sole custody. In May 1990, the court granted the father's motion to modify, and awarded him sole custody of the children. The mother appealed, and we affirmed the decision.
In August 1990, shortly after the trial court's decision, the mother filed a petition for relief from abuse, alleging for the first time that the father had sexually abused the children. According to the mother, during visits in the spring and summer of 1990, Kyle, then age 5, requested on three separate occasions that she put a stop to the "bug game." Allegedly, this "game" consisted of the father inserting his finger in Kyle's rectum or placing his penis in the child's mouth. Jeremy, then age 10, stated that his father had sexually assaulted him five years before, and that Kyle had been similarly assaulted during the summer of 1989. An investigation by the Department of Social and Rehabilitation Services (SRS), which included a medical examination of Kyle and a psychological evaluation of the family, revealed no evidence of abuse. An SRS investigator concluded that there was insufficient evidence to substantiate the mother's allegations, and expressed concern that the allegations of abuse seemed to be made during times of change in custody or when the boys' visitation with the mother was about to end.
In a lengthy opinion, the court found that the mother had failed to produce sufficient evidence to prove the alleged abuse by a preponderance of the evidence, and denied the motion for relief from abuse. Further, the court concluded that the protracted custody proceedings and the mother's prior, unsuccessful abuse petitions reflected "the natural mother's continuing efforts to gain child custody, wherein she has been unsuccessful in all of the other various procedures before the courts." According to the court, the mother's custodial crises formed "the genesis of the abuse claims," which were not found to be credible.
In September 1990, approximately a week after the court denied the petition, the father filed a request for consent to relocate with the children to Utah, where he had a job opportunity. The mother responded by filing another petition for relief from abuse and a motion to modify custody. The petition was denied, but another court-ordered psychological family evaluation followed, in which Jeremy described incidents of sexual abuse. The examining psychologist, Dr. Jonathan Rightmyer, concluded that Jeremy's report of abuse was not credible because it was inconsistent and provided no contextual detail, that the father posed no risk of harm to the safety and welfare of the children, and that the boys' anxious and depressive behavior patterns were the result of the protracted and contentious custody battle, not sexual abuse. Warning that the deep hostilities between the father and the mother threatened the boys with grave psychological distress, the examiner recommended that it would be in the best interests of the children to relocate with the father and his wife.
On October 21, 1990, the mother filed another relief from abuse complaint against the father. Two days later, the case was designated a complex action pursuant to V.R.C.P. 16.1, and Judge Amy M. Davenport sat as presiding judge in the pending request for the father to relocate, the mother's relief from abuse petition, and in all subsequent proceedings. In December 1990, the court granted the father's request to relocate with the children. The court required the father to obtain counselling for Jeremy with a child psychologist or licensed therapist who had a background in counseling children of divorce and some expertise in child sexual abuse. The court noted that the therapy was needed not because Jeremy's reports were substantiated, but rather to remedy the trauma resulting from his reports of abuse.
In motions filed in August 1991 and January 1992, the mother again requested a custody modification, based on allegations of sexual abuse and on separate incidents involving each child. The first incident occurred at the end of the children's five-week stay with the mother in August 1991. Jeremy became extremely anxious and refused to return to his father's home in Utah. On the day of his scheduled return flight, Jeremy burned his airline ticket and ran away from home for several hours. The court ordered an evaluation by Dr. Rightmyer to assess any changes in Jeremy since the testing conducted in the fall of 1990. Dr. Rightmyer again found the allegations of sexual abuse incredible, and advised that the need for continuity in Jeremy's life weighed in favor of his returning to Utah, despite tensions between the father and son. Dr. Rightmyer also recommended intensive family therapy involving Jeremy, his father, and his stepmother.
The incident involving Kyle occurred at the end of Christmas vacation, on January 3, 1992. The mother and her husband took the boys to the airport for their return flight to Utah. Kyle refused to board the plane, became hysterical, and clung to his mother. Eventually, Jeremy also began crying and refused to board the plane. The mother made arrangements with the father's parents to put the children on a flight the next morning, and left them in the care of local police. When the boys' paternal grandmother saw them off, they boarded the plane without incident.
In a March 1992 order, the family court found insufficient evidence of a material and unanticipated change in circumstances to merit a transfer in custody, but modified certain provisions of the December 1990 order relating to parent-child contact and therapy for the children. Based on Dr. Rightmyer's testimony and the absence of corroborating evidence, the court again concluded that Jeremy's allegations of sexual abuse were not credible. Although the court acknowledged that, in a telephone call with Dr. Rightmyer, Jeremy had retracted his claim that his father had sexually and physically abused him, it did not find that the mother had coached Jeremy or that she had otherwise attempted to set him against his father. On balance, the court found that the benefit of continuity in Jeremy's life in Utah outweighed any difficulties arising from his relationship with his father and his expressed desire to remain in Vermont with his mother. However, the court expressed grave concerns about the father's ability or willingness to provide and participate in appropriate therapy for the children.
The order regarding individual and family therapy was amended to require the father to report to...
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