In re C.M.

721 A.2d 1176, 168 Vt. 389, 1998 Vt. LEXIS 345
CourtSupreme Court of Vermont
DecidedOctober 9, 1998
DocketNo. 97-245
StatusPublished

This text of 721 A.2d 1176 (In re C.M.) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re C.M., 721 A.2d 1176, 168 Vt. 389, 1998 Vt. LEXIS 345 (Vt. 1998).

Opinion

Morse, J.

C.M. (father) appeals an order of the Vermont Human Services Board denying his request to expunge from the child-abuse registry two findings that he sexually abused his daughter, M.M. See 33 V.S.A. § 4916(h). He claims that the Board’s ruling should be reversed because the Board (1) erred in reaching a conclusion inconsistent with the hearing officer’s findings, and (2) failed to apply V.R.E. 804a to determine the admissibility of the child victim’s hearsay testimony. We reverse the Board’s ruling, adopt the findings of the hearing officer and order the Commissioner of Social and Rehabilitation Services (SRS) to expunge father’s name from the child-abuse registry.

The relevant findings of the hearing officer as adopted by the Board are as follows. In July 1992, J.M. (mother) observed her then three-year-old daughter, M.M., engage in sex play with her six-year-old male cousin. When mother asked M.M. where she had learned about this, M.M. named three people: a teacher, a babysitter, and a six-year-old cousin. Later that day, mother reported this conversation to her husband, the child’s father, who dismissed it as unimportant. The next day, still concerned, mother spoke with her sister about M.M.’s behavior and allegation that her son (cousin) was one of the persons who taught M.M. this information. Cousin had been sexually abused within the last year. Aunt questioned her son, and he denied ever being alone with M.M. Aunt then questioned M.M. using informational pamphlets on child sexual abuse she consulted as a result of her son’s sexual abuse. Using a doll and family pictures, M.M. pointed to a picture of her father when asked who had given the doll “bad touches.”

The next day mother and aunt took M.M. to see a social worker at Catholic Charities. Based on that interview, Catholic Charities reported to SRS that M.M. may have been sexually abused by someone, [391]*391perhaps a young cousin. SRS then set up an interview with the parents on July 27, 1992.

In the interim, the mother questioned M.M. about sexual abuse and specifically asked her if she had ever had a “wrong touch.” The child replied, “I can’t tell. I can’t tell.” Mother then showed M.M. a picture with twelve people in it and asked her if the person was in the picture. The child put an eraser over her father’s picture and stated, “Daddy did it.” Later, when M.M. saw father come home from work, she pointed to her privates and said, “I told.” Father vehemently denied that he had sexually abused M.M.

The SRS investigator assigned to the case interviewed M.M., mother, father, aunt, and a psychologist who was treating the child. Based upon those interviews, the investigator concluded that M.M. had been sexually abused by her father and notified him on August 4, 1992 that he had been found to have fondled and to have had intercourse and genital-anal contact with his daughter. A subsequent investigation was commenced in October 1992 based on reports that M.M. had made additional disclosures. This resulted in a second finding on December 1,1992 that father had genital-oral contact with his daughter and had wrongfully confined her. Because the allegations of sexual abuse were found to be substantiated by the SRS investigator, both findings were entered into the child-abuse registry maintained by SRS.

Based on the SRS investigation, a criminal action was brought against father, and he was charged with two violations of 13 V.S.A. § 3253(a)(8) for aggravated sexual assault arising from two alleged incidents occurring sometime in a two-year period between August 1990, when M.M. was eighteen months old, and July 1992. M.M. testified at a videotaped deposition, which was reviewed by the district court. The court ruled that the child was not competent to testify under V.R.E. 602, because the child was so young at the time of the alleged offenses and was an “uncooperative and unfocused witness.” The court also concluded that the evidence pertaining to the sexual assault consisted of uncorroborated hearsay which lacked sufficient indicia of reliability. Consequently, the action was dismissed.,

On June 23, 1995, father requested expungement of the civil findings made by SRS. A hearing was conducted by a hearing officer for the Human Services Board at which all of the principal witnesses testified, except M.M. The hearing officer determined that further questioning of M.M. would be harmful based on the testimony of the psychologist that the child had been severely traumatized and her [392]*392recovery from the abuse could be jeopardized by forcing her to relive the events.

A Vermont state police investigator testified at the hearing. He was present at the initial interview with SRS on July 27, 1992, and made a tape recording and transcript of that interview, neither of which were produced at the hearing; the record on appeal does not disclose whether they were requested. He was also present at a second interview with SRS but made no recording of that session. He could not recall any of the child’s specific statements although he remembered that “he could not get much out of her.”

Father has consistently denied the allegations and did the same at the hearing. The hearing officer determined that SRS’s findings that father abused M.M. rested solely on the credibility of the alleged victim and noted that the child’s statements were offered through the testimony of several individuals, including relatives and professionals who had interviewed M.M. The hearing officer found that the statements made by M.M.’s mother and aunt, as well as those made by the SRS social worker and the child’s therapist, were “sincere efforts to recall what the child actually said and contain a good deal of internal consistency.” The hearing officer concluded that M.M.’s statements, as represented by the witnesses, were not reliable. The hearing officer listed a number of reasons underlying this determination: The child initially named other perpetrators, but there was no evidence that any of the other named perpetrators were interviewed by SRS. The initial interview was conducted by the aunt, a person with no training in interviewing children and whose son was a named perpetrator. No recording was produced of the interview, preventing an assessment of the suggestibility of the questioning or credibility of the responses. The hearing was conducted four years after the initial unrecorded interview with the child, affecting the reliability of the hearsay statements made at the hearing. The criminal proceeding’s impact on the child could have affected the spontaneity and reliability of the child’s statements. Finally, the evidence disclosed that over the months following the initial report, the child’s terms for the sexual abuse changed, suggesting that the child was modeling her language to that of the adults who questioned her. The hearing officer therefore recommended that father’s name be expunged from the registry.

Although the Board adopted verbatim twenty of the hearing officer’s twenty-one paragraphs of findings, it amended the final paragraph by eliminating all of the hearing officer’s findings pertaining to the unreliability of the child’s statements and instead concluded [393]*393that “the [adopted] findings compellingly establish that the petitioner was the perpetrator of the sexual abuse of and rejected the hearing officer’s recommendation. The Board reasoned that because the hearing officer found that hearsay witnesses were credible, “the only consistent and reasonable conclusion to be drawn from the evidence presented is that the petitioner was the perpetrator.” Father appeals this decision.

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Related

State v. Weeks
628 A.2d 1262 (Supreme Court of Vermont, 1993)
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Bluebook (online)
721 A.2d 1176, 168 Vt. 389, 1998 Vt. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cm-vt-1998.