Passion v. Dept. of Social & Rehabilitation Services

Annotate this Case
Passion v. Dept. of Social & Rehabilitation Services  (95-400); 166 Vt. 596; 
689 A.2d 459

[Filed 3-Jan-1997]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-400

                            NOVEMBER TERM, 1996

Jan Passion                          }     APPEALED FROM:
     v.                              }     Human Services Board
Department of Social &               }
Rehabilitation Services              }     DOCKET NO. Fair Hearing #13,154

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

       Petitioner Jan Passion appeals an order of the Human Services Board
  denying his request to strike a report from the Vermont Department of
  Social and Rehabilitation Services' (SRS) registry of substantiated child
  abuse investigations.  He contends the Board erred in admitting evidence of
  a prior unsubstantiated allegation of abuse, the Board wrongfully excluded
  petitioner during the testimony of the victim, the evidence was inadequate
  to support a substantiation of sexual abuse, and SRS had no jurisdiction to
  investigate the incident, which occurred in Mexico. We affirm the Board's

       SRS first had contact with petitioner in 1992 when the agency received
  a report of possible sexual abuse involving petitioner and his
  stepdaughter, R.F.  Following an investigation, SRS determined the
  allegation could not be substantiated as sexual abuse or exploitation, and
  no further action was taken.

       In April 1994, SRS received another report from R.F.'s high school
  guidance counselor. The incident occurred while the family was on vacation
  in Mexico.  R.F., then fourteen years old, was suffering from a stomach
  disorder, and petitioner was massaging her stomach.  R.F. reported that,
  after an aunt left the room, petitioner touched her breasts several times. 
  Petitioner claimed that the touching, if it occurred, was purely
  inadvertent and nonsexual.

       SRS investigated and substantiated the report as child sexual abuse,
  which resulted in placement of petitioner's name on the SRS registry of
  substantiated child abuse investigations. See 33 V.S.A. § 4916(a).  SRS's
  finding of abuse was upheld throughout petitioner's subsequent appeals to
  the SRS District Director, the SRS Commissioner, and the Human Services
  Board, which adopted the hearing officer's report and order in June 1995. 
  The Board concluded that petitioner had sexually molested R.F., which under
  the statute "consists of any act . . . by any person involving sexual
  molestation or exploitation of a child," 33 V.S.A. § 4912(8), and denied
  petitioner's request to expunge the report against him.  This appeal

       Petitioner first argues that SRS violated his statutory and due
  process rights by using evidence from the 1992 unsubstantiated
  investigation.  Vermont law requires that all SRS records of an
  unsubstantiated child abuse investigation be destroyed unless the person
  complained of requests that they not be destroyed.  33 V.S.A. § 4916(a),
  (b).  That SRS failed to destroy its documents from the 1992 investigation,
  petitioner claims, is shown by repeated mention of the 1992 event in the
  1994 investigation documents and during subsequent proceedings.

       But petitioner has failed to show that SRS did not destroy the 1992
  documents.  The only document from the 1992 investigation submitted on
  appeal is a CUSI report.  The Chittenden Unit for Special Investigations,
  or CUSI, is a police unit not affiliated with SRS.  The statutory


  requirement to destroy documents applies only to records held by SRS;
  non-SRS investigators are free to record and preserve information as they
  deem appropriate and necessary.  Also, although the SRS investigator
  testified during the hearing that he was "aware" of the 1992 incident,
  there was no evidence that 1992 SRS records were used during the 1994
  investigation. While the statute expressly requires destruction of
  unsubstantiated abuse records, it does not require SRS investigators, or
  other witnesses, to develop amnesia about prior reported incidents. Thus,
  petitioner has failed to provide any evidence that SRS violated the
  statutory requirements.

       Additionally, any mention during the proceedings of SRS records from
  the 1992 investigation was harmless.   Petitioner must show not only that
  the Board erred in admitting evidence of the 1992 SRS investigation, but
  that the admission prejudiced petitioner.  See Baldwin v. State, 126 Vt.
  70, 77, 223 A.2d 556, 561 (1966).  Where erroneously admitted evidence is
  merely cumulative with evidence admitted without objection, the erroneous
  admission is harmless.  Id. (harmless error where photographs objected to
  showed same features as depicted in photographs admitted without
  objection).  During the hearing, petitioner himself offered testimony
  concerning both the details of the 1992 investigation and the events
  surrounding the investigation.  Thus, petitioner cannot claim to have been
  prejudiced by testimony concerning the 1992 report when he personally
  offered testimony on the information the report likely contained.

       In any event, petitioner waived his right to raise this issue on
  appeal by failing to object before the Board.  Matters not objected to in
  the prior proceeding will not be considered on appeal, Poulin v. Ford Motor
  Co., 147 Vt. 120, 125, 513 A.2d 1168, 1173 (1986), and an objection on one
  ground in the proceeding below does not preserve a claim of error on other
  grounds, In re R.L., 148 Vt. 223, 227, 531 A.2d 909, 911-12 (1987).  In his
  memorandum in opposition to the State's motion to compel the testimony of
  petitioner's therapist, petitioner argued that any testimony concerning the
  1992 incident was irrelevant and immaterial under V.R.E. 401, prejudicial
  under V.R.E. 403, and prohibited character evidence under V.R.E. 404.
  Petitioner renewed his objection twice during the hearing on the same
  basis.  But at no time did petitioner object to the 1992 testimony on the
  basis that SRS had violated the statute requiring destruction of records
  and thereby violated petitioner's due process rights.  Having failed to
  object on that basis before the Board, petitioner cannot raise the issue

       Petitioner next contends that his due process rights were violated
  when he was excluded from the hearing room during R.F.'s testimony.  As it
  is undisputed that petitioner's attorney cross-examined R.F., petitioner's
  argument in substance is that he had a right to face-to-face confrontation
  with his accuser.  But the Sixth Amendment right to face-to-face
  confrontation is limited to criminal defendants.  In re A.L., 163 Vt. 635,
  636, 669 A.2d 1168, 1169 (1995) (mem.) (citing Coy v. Iowa, 487 U.S. 1012
  (1988)).  The proceeding before the Board requesting deletion from the SRS
  registry was an administrative proceeding, not a criminal action, and thus
  does not require the same constitutional protections.  See id. at 637, 669 A.2d  at 1170 (parents have no right to face-to-face confrontation in CHINS
  proceeding under either United States or Vermont constitutions).

       Thus the decision to exclude petitioner during R.F.'s testimony was a
  matter within the Board's discretion.  For this Court to reverse a decision
  committed to the Board's discretion, petitioner must show an abuse of
  discretion that caused prejudice.  See In re Gallagher, 150 Vt. 50, 52, 549 A.2d 637, 639 (1988).  Petitioner confirmed during his testimony that R.F.
  had on two occasions engaged in self-destructive behavior following the
  1994 incident -- first scratching and then cutting her wrists.  Immediately
  preceding her time to testify, R.F. requested that petitioner not be
  present.  The record shows that the hearing officer considered this
  information before deciding to exclude petitioner.  The hearing officer
  also minimized any prejudice to petitioner by granting him additional time
  to confer with his attorney prior to R.F.'s testimony, as well as time to
  confer prior to R.F.'s cross-examination.  Thus the hearing officer did not


  abuse his discretion by excluding petitioner from the room during R.F.'s

       Petitioner also contends the evidence was insufficient to support the
  Board's finding of sexual abuse.  Petitioner argues that, although
  admittedly not required by statute, SRS must prove that the reported act
  was committed to satisfy sexual desires of either the perpetrator or the
  victim.  In support of this argument, petitioner cites Vermont's criminal
  statute on lewd or lascivious conduct with a child, which requires proof
  that the act was committed "with the intent of arousing, appealing to, or
  gratifying the lust, passions or sexual desires of such person or of such
  child."  13 V.S.A. § 2602.

       But the proceeding from which petitioner appeals is an administrative
  action, unconnected to prosecution under Vermont's criminal statute against
  lewd or lascivious conduct with a child. The statute does not provide for
  criminal penalties such as fines or imprisonment, but is limited to listing
  on SRS's registry of substantiated child abuse investigations.  We
  therefore decline to read additional elements into the statute by requiring
  the Board to show petitioner acted intentionally.  The evidence, based on
  the testimony of four witnesses, including petitioner and R.F., was
  sufficient for the Board to find that petitioner had committed the alleged
  act.  This, in turn, was adequate to support the Board's conclusion that
  petitioner "molested and exploited [R.F.] within the meaning of the . . .
  statute."  See Bigelow v. Department of Taxes, 163 Vt. 33, 35, 652 A.2d 985, 987 (1994) (Court will not disturb agency's findings so long as
  findings supported by credible evidence).

       Finally, petitioner contends that SRS lacked jurisdiction to
  investigate allegations of sexual abuse that occurred outside the state of
  Vermont.  But petitioner failed to raise the issue in the administrative
  proceedings below, and thereby failed to preserve the issue on appeal.  We
  have noted that requiring preservation of jurisdictional issues in an
  administrative proceeding is common in American law and an exception to the
  general rule allowing challenges to subject-matter jurisdiction at any
  time.  In re Denio, 158 Vt. 230, 234, 608 A.2d 1166, 1169 (1992). Having
  failed to challenge SRS's authority to investigate an incident that
  occurred in Mexico in the prior administrative proceedings, petitioner
  cannot raise it for the first time before this Court.



     Frederic W. Allen, Chief Justice

     Ernest W. Gibson III, Associate Justice

     John A. Dooley, Associate Justice

     James L. Morse, Associate Justice

     Denise R. Johnson, Associate Justice