Opinion
SUPREME COURT DOCKET NO. 2011-385
07-16-2012
Amanda Mallette v. George H. LaFontaine, III
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Superior Court, Franklin Unit,
Family Division
DOCKET NO. 155-7-11 Frfa
Trial Judge: Linda Levitt
In the above-entitled cause, the Clerk will enter:
Defendant appeals from a final relief from abuse order issued by the superior court, family division, to protect defendant's infant granddaughter. We affirm.
The record evidence may be summarized as follows. Mother and father shared custody of their daughter, who was two and a half years old at the time of the final relief-from-abuse hearing in this matter. In May 2011, mother moved for an emergency relief from abuse order against father. She claimed that, when the child returned from spending time with father, she exhibited inappropriate sexualized behavior and had bruises. The trial court denied the motion, finding that the allegations lacked sufficient "documentation."
In July 2011, mother again moved for an emergency relief from abuse order, naming the child's paternal grandfather as defendant. Mother again alleged that the child had exhibited sexualized behavior; she had referred to people putting fingers in her "peepee hole," placed a toy in her vagina, and removed the clothes from a doll and licked its crotch. She also had an irritation in her vaginal area. Mother's babysitter was defendant's niece and lived for a time in the same household as defendant, where she would often care for the child. The babysitter reported that the child had identified "Papa," the child's name for defendant, as the person who showed her how to do these things.
The trial court issued an emergency relief from abuse order that prohibited defendant from having any contact with mother or the child. Thereafter, after several continuances, the court held a final hearing in September 2011. Mother testified at the hearing, elaborating on the sexualized behaviors and bruising exhibited by the child and confirming the child's report that it was "her Poppa," i.e., defendant, who showed her these behaviors. Mother testified further that the behaviors gradually stopped after issuance of the emergency order in June. The child's babysitter also testified to observing the child engage in a variety of sexualized behaviors with her dolls, and noted redness and bruising in the area of the child's crotch. She also stated that she became concerned about defendant's behavior when he took the child into his bedroom and closed the door. Defendant testified as well, denying the allegations of abuse.
At the conclusion of the hearing, the trial court entered findings on the record. The court expressly found that defendant had sexually abused the child, crediting the testimony of mother and mother's babysitter concerning the child's sexualized behaviors and her identification of "Poppa," or defendant, as the person who had showed her these behaviors. Accordingly, the court issued a final order prohibiting defendant from abusing or contacting the child, or coming within 500 feet of mother, the child, or her residence. The order provided that it would remain in effect for ten years, until September 29, 2021. This appeal followed.
Although not clearly developed and argued, several issues are raised by defendant on appeal. First, defendant challenges the sufficiency of the evidence to support the findings, asserting that the court "gave too much weight" to the testimony of mother and her babysitter and too little to the evidence of mother's "acrimonious" relationship with father and her alleged interference with father's visitation the prior May. Defendant also observes that mother did not report the sexual abuse to the police, that several adults lived in the house with defendant, and that there was no medical testimony corroborating the abuse.
The factual findings of a trial court must be viewed in the light most favorable to the judgment, disregarding the effect of modifying evidence, and they will not be disturbed unless clearly erroneous. Coates v. Coates, 171 Vt. 519, 520 (2000) (mem.). Moreover, as we have explained, "[i]n matters of personal relations, such as abuse prevention, the family court is in a unique position to assess the credibility of witnesses and weigh the strength of evidence at hearing." Raynes v. Rogers, 2008 VT 52, ¶ 9, 183 Vt. 513. Thus, "[w]e will uphold factual findings if supported by credible evidence, and the court's conclusions will stand if the factual findings support them." Coates, 171 Vt. at 520.
Viewed under this standard, we find no basis to disturb the judgment. Mother's testimony—corroborated by the child's babysitter—describing the child's sexualized behavior and her identification of defendant as the source of the behavior was sufficient to meet her burden of demonstrating abuse by a preponderance of the evidence. Id. As noted, the trial court was uniquely situated to weigh the evidence and the credibility of the witnesses, and we discern no basis for a finding of clear error.
Defendant's additional evidentiary claims require no extended discussion. His assertion that the trial court "gave too much deference to its temporary Order" finds no support in the record. His claim that the evidence failed to support the court's finding that some of defendant's conduct toward the child could be characterized as "grooming" behavior is unsupported by any argument or showing that the finding, even if erroneous, was unduly prejudicial, given the primary finding of abuse. See Mills v. Mills, 167 Vt. 567, 569 (1997) (mem.) (holding that erroneous finding that was not essential to decision was harmless). Similarly, his claim that the trial court erred in denying a request to serve interrogatories on mother contains no clear claim or showing as to how he was prejudiced by the ruling.
Finally, defendant contends that the ten-year duration of the order was unjustified. We have recognized that the abuse-prevention statute "imposes no limit on the duration of relief-from-abuse orders" and have upheld an order as long as five years in length where the record revealed a clear rationale for the provision. Benson v. Muscari, 172 Vt. 1, 9-10 (2001) (noting that, on the record evidence, the trial "court could thus conclude that only an order of long duration would ensure a sufficient cooling-off period to minimize the risk of further abuse"); see also Thibodeau v. Thibodeau, 2005 VT 14, ¶ 4, 178 Vt. 457 (mem.) (trial court extended relief-from-abuse order for additional six years, to terminate when child reached age of majority). While the court here made no explicit findings explaining the lengthy order, the nature of the abuse presents sufficient justification in and of itself. The rationale for a ten-year no-contact condition is reasonably inferred from the finding of sexual molestation of an infant child. Appellant offered no reason as to why the court should have assumed the need for protection would cease at any point short of ten years, or that the court otherwise exceeded its discretion under these circumstances. See Benson, 172 Vt. at 9 (upholding a five-year restraining order where there "was no basis to conclude that a five-year period is unreasonable as a matter of law").
Affirmed.
BY THE COURT:
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Paul L. Reiber, Chief Justice
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice