In re C.M.

In re C.M.  (97-245); 168 Vt. 389; 721 A.2d 1176

[Filed 9-Oct-1998]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 97-245


In re C.M.                               Supreme Court

                                         On Appeal from
                                         Human Services Board

                                         June Term, 1998


       Robert Orleck, Maureen Dakin and William Keogh

       Robert Appel, Defender General, and William A. Nelson and Henry
  Hinton, Appellate     Attorneys, Montpelier, for Plaintiff-Appellant.

       William H. Sorrell, Attorney General, Montpelier, and Michael O. Duane
  and Barbara L. Crippen, Assistant Attorneys General, Waterbury, for
  Defendant-Appellee.


PRESENT:     Dooley, Morse, Johnson and Skoglund, JJ., and Katz, Supr.
             J., Specially Assigned


       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 Rehabilitative 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, perhaps 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 recovery 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 that "the
  [adopted] findings compellingly establish that the petitioner was the
  perpetrator of the sexual abuse of M.M," 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.

                                     I.

       Because we find the issue dispositive, we begin by addressing father's
  claim that the                                      

 

  Board erred in reaching a conclusion not supported by the hearing officer's
  findings.  The hearing in this case was conducted by a  hearing officer
  pursuant to 3 V.S.A. § 3091(b).  Thus, the issue is whether the Board
  complied with the § 3091(c) requirements for rendering an order based on
  the hearing officer's findings.

       Section 3091(c) provides:

  The board or the hearing officer shall issue written findings of fact.  If
  the hearing is conducted by a hearing officer the hearing officer's
  findings shall be reported to the board, and the board shall approve the
  findings and adopt them as the findings of the board unless good cause
  is shown for disapproving them.  Whether the findings are made by
  the board, or by a hearing officer and adopted by the board, the board
  shall enter its order based on the findings.

  3 V.S.A. § 3091(c) (emphasis added).  In Pratt v. Dep't. of Soc. Welfare,
  145 Vt. 138, 142, 482 A.2d 1389, 1391 (1984), we stated that the hearing
  officer acts as the finder of fact for the Board.  Further, we explained
  that under § 3091(c) the Board must approve and adopt the findings of the
  hearing officer unless the Board demonstrates good cause to reject the
  findings made by the hearing officer. See id.  Thus, the burden here was on
  the Board to show good cause to disapprove any findings when it rendered
  its decision contrary to the hearing officer's recommendations.  See id.

       We must first determine whether the Board complied with the good cause
  requirement for rejecting part of the hearing officer's findings.  See id.
  at 141, 482 A.2d  at 1391.  Here, the Board offered no explanation as to why
  it did not adopt the hearing officer's finding that M.M.'s statements were
  unreliable and made no findings to negate the six reasons why the hearing
  officer could not find M.M.'s statements credible.  In fact, nowhere were
  the hearing officer's findings disputed.  Instead, the Board merely
  concluded that the hearing officer's other findings "compellingly
  establish" that father abused M.M.  Further, the Board held that "if the
  alleged victim's allegations are deemed to be credible, and those
  allegations are deemed to constitute sexual abuse, the Department [of
  SRS]'s decision [to place father's name in the registry] must 

 

  be affirmed."  It then concluded that because the hearing officer found the
  witnesses who related  M.M.'s hearsay statements were credible witnesses,
  father sexually abused M.M.

       The point, however, is not whether the witnesses relating the hearsay
  were telling the truth, but whether the hearsay was worthy of belief.  The
  hearing officer determined it was not, and the Board never found cause to
  reject her findings on the lack of credibility of M.M.'s statements.
  Therefore, we conclude that the Board failed to meet its burden of
  demonstrating good cause as required under § 3091(c).  Consequently, the
  facts as found by the hearing officer are deemed adopted by the Board as
  required by § 3091(c) and constitute the record for our review.  See id. at
  142, 482 A.2d  at 1391.

       In reviewing the findings of the hearing officer deemed approved under
  the statute, the hearing officer determined that the child's statements as
  recounted by the witnesses could not serve as accurate descriptions of the
  alleged events.  The hearing officer concluded that the quality of the
  hearsay evidence "militate[s] against assigning any accuracy or reliability
  to the child's statements in this case."  Based on this finding, it is
  axiomatic that father's name must be expunged from the child-abuse
  registry.

                                     II.

       Because of our resolution of the first claim, we need not address
  father's remaining claims of error.(FN1)  The parties, however, raise an
  important and related issue that should be settled.  That issue concerns
  the proper evidentiary standard governing the admissibility of child
  hearsay statements concerning sexual abuse in an expungement hearing;
  father contends that V.R.E. 804a controls, whereas SRS argues that the
  Board's more relaxed hearsay rule, Rule 12, should govern.

       Under the relevant provisions of V.R.E. 804a, a witness may testify to
  hearsay

 

  statements made by a child ten years old or younger if (1) the statements
  are offered in a sexual abuse case where the child is an alleged victim,
  (2) the statements were not taken in preparation for a legal proceeding,
  (3) the child is available to testify in court or under V.R.E. 807, and (4)
  the time, content and circumstances of the statements show substantial
  indicia of trustworthiness. See V.R.E. 804a; State v. Weeks, 160 Vt. 393,
  399, 628 A.2d 1262, 1265 (1993).

       SRS argues that Rule 12 provides an exception to V.R.E. 804a.  Rule 12
  states that the Rules of Evidence shall be followed "except that the
  hearing officer may allow evidence not admissible where in his or her
  judgment, application of the exclusionary rule would result in undue
  hardship and the evidence offered is of a kind commonly relied upon by
  reasonably prudent persons in the conduct of their affairs."  Human
  Services Agency, Human Services Board, Fair Hearing Rule 12, 4 Code of Vt.
  Rules, Rule 13 020 002 at 3 (1995).  The Board in this case applied Rule 12
  with regard to M.M.'s hearsay statements rather than the standards set out
  in V.R.E. 804a.

       The Court has yet to squarely address whether V.R.E. 804a applies to
  expungement proceedings.  V.R.E. 804a was amended in 1993 to extend to
  statements of a child offered in administrative and civil proceedings in
  addition to criminal proceedings.  See 1993, No. 100, § 11. The Rule, as
  amended, allows the admission of hearsay statements of a child victim in
  certain enumerated criminal proceedings and juvenile proceedings, see
  V.S.A. 804a(1) (statements not excluded as hearsay if child is putative
  victim of sexual assault under 13 V.S.A. 3252; aggravated sexual assault,
  13 V.S.A. 3253; lewd or lascivious conduct, 13 V.S.A. § 2602; or criminal
  or civil juvenile proceedings under chapter 55 of Title 33), but does not
  enumerate the specific administrative proceedings in which it is
  applicable.

       Instead, V.R.E. 804a provides a rule of general applicability in
  addition to the proceedings specifically enumerated.  This provision states
  that V.R.E. 804a is applicable "in a civil, criminal or administrative
  proceeding in which the child . . . is a putative victim of. . . wrongful
  sexual activity and the statements concern . . . the wrongful sexual
  activity."  V.R.E. 

 

  804a(a)(1).  The plain language of V.R.E. 804a indicates that the
  Legislature intended this hearsay exception to apply to any civil, criminal
  or administrative proceeding in which such statements are offered.  See
  State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996) (the first
  step in  determining legislative intent is to look at the language of the
  statute itself); see also Reporter's Notes, 1993 Amendment to V.R.E. 804a
  (amendment makes hearsay exception applicable in  proceedings under 13
  V.S.A. § 2601, 33 V.S.A. § 6913 and to statements concerning wrongful
  sexual activity "presumably" under any statutory provision).  Moreover,
  V.R.E. 804a does not enumerate any specific administrative proceedings in
  which it is applicable; consequently, we conclude that the general rule
  must apply in administrative proceedings.  We find no reason to exclude
  expungement proceedings from this general rule. Accordingly, we conclude
  that V.R.E. 804a applies in determining the admissibility of child hearsay
  statements concerning sexual abuse in an expungement hearing. %PAGES

       Reversed; findings of the hearing officer are adopted; the
  Commissioner is ordered to expunge father's name from the child-abuse
  registry.

                               FOR THE COURT:



                               Associate Justice


--------------------------------------------------------------------------------
                                  Footnotes



FN1.  Father also claimed that the Board relied solely on hearsay
  allegations in violation of the father's constitutional right to due
  process and that SRS failed to sustain its  burden of producing evidence to
  support its conclusion that he had abused M.M.