In re J.A.

In re J.A.  (96-223); 166 Vt. 625; 699 A.2d 30

[Filed 6-May-1997]


                           ENTRY ORDER

                 SUPREME COURT DOCKET NO. 96-223

                        MARCH TERM, 1997


In re J.A., Juvenile              }     APPEALED FROM:
                                  }
                                  }
                                  }     Caledonia Family Court
                                  }
                                  }
                                  }     DOCKET NO. 125-11-95 Cajv


       In the above-entitled cause, the Clerk will enter:

       J.A. and her mother appeal a judgment of the Caledonia Family Court
  finding J.A. to be a child in need of care or supervision (CHINS). 
  Appellants challenge a provision of the order that incorporated a case plan
  requiring J.A.'s stepfather to admit to sexually abusing her.  We strike
  that portion of the challenged order, and affirm in all other respects.

       In November 1995, the Department of Social and Rehabilitation Services
  (SRS) filed a petition with the family court alleging that J.A. had been
  physically and sexually abused by her stepfather. Evidence adduced at the
  hearing on the merits disclosed that on November 21, 1995, J.A. went to a
  friend's house and told her friend's parents that her stepfather had beaten
  her.  The parents called the Vermont State Police.  Following an interview
  with the juvenile, SRS took her into protective custody.  J.A. testified
  that her stepfather had sexually abused her repeatedly when she was between
  six and nine years old, and that more recently he had pinched her breasts. 
  The stepfather admitted in his testimony that he had grabbed, pushed, and
  threatened her.  Based upon the foregoing, the court found physical abuse
  by clear and convincing evidence and sexual abuse by a preponderance of the
  evidence.

       In January 1996, J.A.'s attorney moved to reopen the merits, stating
  that as a result of "recovered memory" J.A. now recalled that the more
  serious sexual abuse that occurred between the ages of six and nine was
  actually committed by her natural father, who had died in 1992, and not by
  her stepfather.  The court found J.A.'s partial recantation credible and
  entered new findings; however, the trial court still found that J.A. was in
  need of supervision based on the allegation of physical abuse and breast
  pinching.  Disposition hearings were held and it was determined that J.A.
  should stay in the custody of foster parents and that under a reunification
  plan established by SRS, the stepfather would have to admit to sexual abuse
  and enroll in psychosexual counseling.

       Appellants contend that the disposition order requiring the stepfather
  to admit to sexual abuse as a condition of reunification violates his Fifth
  Amendment right against self-incrimination.  We have held that "[t]he trial
  court cannot specifically require the parents to admit criminal misconduct
  in order to reunite the family."  In re M.C.P., 153 Vt. 275, 300, 571 A.2d 627, 641 (1989). Accordingly, that portion of the order requiring the
  stepfather to admit to sexual abuse must be stricken.  We have also
  recognized, however, the importance of preventing a child from being
  subjected to an abusive environment and thus have held that reunification
  plans may require extensive therapy and counseling for sexually abusive
  parents.  Id. at 300-01, 571 A.2d  at 640-41. Furthermore, if the parents' 
  denial of abuse interferes with 

 

  effective therapy, then the court "may act on that finding to the parents'
  detriment without offending the Fifth Amendment privilege."  Id. at 301,
  571 A.2d  at 641.  Therefore, the additional requirement that the stepfather
  successfully complete counseling was valid and appropriate.

       Appellants also contend the stepfather was denied due process by being
  ordered to undergo therapy without having been accorded party status and
  legal representation.  The stepfather was aware of the case, and testified
  at the hearing on the merits, but never requested party status.

       Finally, at oral argument, counsel for J.A. raised the issue for the
  first time as to whether the evidence was sufficient to support the finding
  of abuse by the stepfather.  Issues not briefed are waived.  New England
  Road Mach. Co. v. Calkins, 121 Vt. 118, 122, 149 A.2d 734, 738 (1959)
  (General statement that error was committed, without citing authorities,
  stating grounds and supporting point by argument is inadequate briefing and
  merits no consideration).

       The portion of the court's order pertaining to the caseplan
  requirement that J.A.'s stepfather admit to sexual abuse is stricken;
  otherwise, affirmed.



  BY THE COURT:



  _______________________________________
  Ernest W. Gibson III, Associate Justice

  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  James L. Morse, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice

  _______________________________________
  Frederic W. Allen, Chief Justice (Ret.)
  Specially Assigned