# Mullin v. Phelps > Supreme Court of Vermont · June 24, 1994 · 162 Vt. 250 URL: https://www.frixlaw.com/law-library/cases/9702841 ## Case - **Full name:** Stephen Mullin v. Rita (Mullin) Phelps - **Court:** Supreme Court of Vermont - **Decided:** June 24, 1994 - **Citations:** 162 Vt. 250; 647 A.2d 714; 1994 Vt. LEXIS 59 - **Precedential status:** Published - **Opinion:** Concurring in part by Allen - **Judges:** Allen, Gibson, Dooley, Morse, Johnson - **Cited by:** 103 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9702841 ## How later opinions describe it (automated extraction) - holding that finding of sexual abuse by mere preponderance of evidence is insufficient process for court in divorce case to terminate all parent-child contact; emphasizing that although due process analysis relied heavily on United States Supreme Court case, holding was ground… - explaining that father’s reliance on substantial portions of the record to illustrate evidence detracting from the court’s findings simply demonstrated “the existence of conflicting evidence,” but did “not satisfy the father’s burden of showing the absence of credible evidence… - explaining that on review, “[f]actual findings are viewed in a light most favorable to the prevailing party, disregarding modifying evidence,” and findings will not be disturbed unless appellant shows that “there is no credible evidence” to support them (quotations omitted) - stating that trial court’s findings are viewed most favorably to prevailing party and will not be disturbed on appeal unless there is no credible evidence to support them, even if they are contradicted by substantial evidence - explaining that findings “are viewed in a light most favorable to the prevailing party, disregarding modifying evidence,” and that this Court’s role is not “to reweigh evidence or to make findings of credibility de novo” ## Opinion text Allen, C J., concurring and dissenting. This case affirms the maxim that hard cases make bad law. Although I concur with parts I, II and IV of the Court’s opinion, I disagree with part III, in which the Court holds that, as a matter of federal due process, a restraint on parent-child contact for an indefinite period must be based on findings supported by clear and convincing evidence. 1 *271 I. First, I believe the Court misconstrues the order in holding that it effectively terminates the father’s parental rights. In its provisions for contact between father and sons, the family court curtailed the father’s visitation rights for an indefinite period. It did not terminate those rights. Though harsh, the family court’s order leaves open the possibility of limited contact and the establishment of regular visitation. Moreover, the order is not final, and the possibility of increased contact exists. In contrast, termination of parental rights is “final and irrevocable,” and entails state action both severe and irreversible. Santosky v. Kramer, 455 U.S. 745, 759 (1982). In a termination action, the State takes an active, partisan role and “marshals an array of public resources” to make a case against the parents. Id. at 760 . “The State’s ability to assemble its case almost inevitably dwarfs the parents’ ability to mount a defense.” Id. at 763 . Custody proceedings, in which the parents contest the right to contact with the children, do not ordinarily entail such disparities of resources. Furthermore, the state plays only a tangential role in custody proceedings, notwithstanding the fact that the parties may “rely heavily on investigations or evaluations by state agencies or private professional groups that serve the public.” Mullin v. Phelps, 162 Vt. 250, 267 , 647 A.2d 714, 724 (1994). Finally, as the Santosky Court noted, termination of parental rights works potentially far-reaching consequences, including permanent loss of the right to support and maintenance, the right of inheritance, and all other rights “‘inherent in the legal parent-child relationship.’” Santosky, 455 U.S. at 760 n.11 (quoting In re K.S., 515 P.2d 130, 133 (Colo. Ct. App. 1973)). Here, the family court’s order regarding contact in no way affects these attributes of the parent-child relationship. In short, the significant differences between termination proceedings and custody proceedings precludes treatment of the parent-child contact provision as a termination of parental rights. The Santosky due process analysis was tailored for the latter — it does not fit the former. II. On appeal, the father has questioned the family court’s exercise of discretion in imposing the terms for contact with his children, and the majority tacitly accepts the family court’s discretion to fashion custody determinations. Nickerson v. Nickerson, 158 Vt. 85, 88-89 , 605 A.2d 1331, 1333 (1992). Rather than confront the propriety of that court’s exercise of discretion in limiting the father’s contact, the *272 Court embarks upon a due process analysis guided by Santosky v. Kramer. Santosky held that due process mandates, at minimum, that the State make its case for permanent termination of parental rights by clear and convincing evidence. 455 U.S. at 769 . As explained above, I harbor significant doubt that Santosky should control a due process analysis in this context. But even accepting that Santosky sets forth the appropriate analysis, I do not agree that due process mandates an elevated level of proof in this custody proceeding. Determining what process is due requires consideration of three distinct factors: the private interests affected, the risk of error created by the State’s chosen procedure, and the countervailing governmental interest in maintaining the challenged procedure. See id. at 754 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). The Court acknowledges the interest of the children at the outset but then gives short shrift to that interest, which should be the compelling concern in custody determinations. The Court turns first to an analysis of the private interests involved. I readily agree that parents and children share a fundamental liberty interest in association free of state interference. However, the child also has a vital interest in personal safety and physical and emotional well-being. See In re A.D., 143 Vt. 432, 435-36 , 467 A.2d 121, 124 (1983). The Court disregards this separate interest, presuming, as the Santosky Court did, that “until shown otherwise,” it is in the children’s best interest to remain in the custody of their parents. In assessing the private interests involved, the Santosky Court justified its assumption that parents and child share an identity of interests based on the bifurcated nature of the termination proceedings at issue. 455 U.S. at 759-61 . In those proceedings, the State seeks termination of all rights, and must make a threshold showing that the parents are unfit before a court may assume that the interests of parents and children diverge. See id. Custody proceedings in divorce cases are a different matter. In custody modification proceedings, the extant custody arrangement is presumed to be in the best interest of the children, absent proof of a substantial change in material circumstances and proof that an alternative arrangement would better promote that interest. See 15 V.S.A. §§ 665, 668. This Court affirms the family court’s conclusion that a substantial change in circumstances has occurred, based in part on findings of abuse at the hands of the father. Only at this point may the family court consider alternative arrangements based on the best interest of the children, Kilduff v. Willey, 150 Vt. 552, 553 , 554 A.2d 677, 678 (1988), including severe restraints on parent-child contact. In addition, once the finding of substantial change based on *273 an abusive situation has been made, the interests of children and parent diverge and the distinct interests of the children must be taken into account. I do not argue at this point in the analysis that the finding of abuse by a preponderance of the evidence suffices to permit “effective termination” of parent-child contact. The finding should, however, dictate that the interests of the children in personal safety and freedom from abuse be taken into account as distinct private interests. Indeed, the Court points out that maximum contact with both parents following divorce furthers the best interest of the children, “unless direct physical harm or significant emotional harm ... is likely to result from such contact.” 15 V.S.A. § 650 (emphasis added). This Court also has held that “‘a child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too, some of which are of a constitutional magnitude.’” Paquette v. Paquette, 146 Vt. 83, 89 , 499 A.2d 23, 28 (1985) (quoting Bennett v. Jeffreys, 356 N.E.2d 277, 281 , 387 N.Y.S.2d 821, 824-25 (1976)). I must conclude that the interests of the children cannot be subsumed in the interests of the parents in the context of this custody proceeding, but must be considered as a distinct element in the due process calculus. Regarding the nature of the private interests involved, the father has a significant interest in maintaining contact with the children. The Court likens the mother’s interest to that of the state, a countervailing interest in protecting the children from abuse. Conceding that “a parent’s interest in protecting his or her children is arguably more compelling than the similar state interest in a termination proceeding,” the Court downplays this interest by suggesting that it may be satisfied through supervised visitation instead of “effective termination” of contact. The point of this due process analysis, though, is to discern what level of proof is required before the family court may severely constrain parent-child contact, not to consider alternatives to this constraint, a matter committed to the discretion of the family court. Thus, alternative dispositions are irrelevant to the due process analysis, and the mother’s interest in protecting her children from abuse deserves greater weight than this Court would afford. Finally, there must be consideration of the interests of the children in continued contact with both parents and freedom from abuse. In sum, a constitutionally sufficient due process analysis must take into account the private interests of the father, the mother, and the children. The Court’s failure to examine all these interests unduly favors the father at the expense of the children. Moving into the second part of the Mathews analysis, the Court examines the risk of error from a preponderance standard, and what *274 an erroneous deprivation would exact from each parent. Since the custody proceeding entails an adversary contest involving the parents and the children, “the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding.” Santosky, 455 U.S. at 761 (emphasis added). Having discounted the separate interests of the children in maintaining contact with both parents and in living free from abusive treatment, the Court looks only to the harm that would befall each parent from an incorrect finding. But as explained above, the significant differences between the termination proceedings in Santosky and the custody proceedings in this case demand consideration of the harm that could come to the children through erroneous findings. 2 Unquestionably, the father faces a significant loss if the family court incorrectly “terminates” his right to contact with the boys by a preponderance of the evidence. Unlike the termination proceedings in Santosky , however, the custody order at issue in this case is not a final order; the father may move for modification at a later date. Ostensibly, the mother loses nothing if the father’s rights are erroneously curtailed. In this scenario, the children suffer harm to their interest in continued regular contact with their father. If the family court erroneously finds, by a preponderance of the evidence, that the abuse did not occur, the father’s contact with the children remains intact. The mother suffers harm to her interest in protecting the children from abuse. The burden of an erroneous finding falls heaviest on the children, because continued contact with the abusive parent places the children at risk of contact inimical to their physical, emotional, and psychological well-being. Proving sexual abuse by any standard poses a formidable task; proof by a preponderance of the evidence should not be equated with mere allegation. As shown above, even this standard subjects the children to a considerable risk of harm. Implicit in the Court’s analysis is a consideration of “the probable value, if any, of additional or substitute procedural safeguards,” in this case a higher burden of proof. Mathews v. Eldridge, 424 U.S. at 335 . Raising the standard of *275 proof to clear and convincing evidence allocates a disproportionate risk of error to the children. Factfinding in such cases poses an extremely difficult task. The evidence in this case, with recanted stories of abuse and conflicting opinions by the experts, is anything but atypical. Requiring proof of the abuse such that there is no serious or substantial doubt about its existence will unduly deprive the family court of the power to fashion remedies for the protection of children. Therefore, I conclude that though the risk of erroneous deprivation may fall hard on the father, anything more than a preponderance of the evidence standard unfairly exposes the children to risk of greater harm. Though the Mathews test comprises three parts, each of which the Santosky Court examined, the Court fails to consider the third factor, “the countervailing governmental interest supporting use of the challenged procedure.” Santosky, 455 U.S. at 754 . The state, as parens patriae, “has a legitimate and compelling interest in the safety and welfare of the child.” In re A.D., 143 Vt. at 435 , 467 A.2d at 124 ; accord Santosky, 455 U.S. at 766 . The legislature has adopted as an overarching public policy that custody determinations be fashioned according to the best interests of the child. See 15 V.S.A. § 665(b); Bissonette v. Gambrel, 152 Vt. 67, 70 , 564 A.2d 600, 602 (1989); see also 15 V.S.A. § 650 (maximum parental contact in child’s best interest unless child would suffer physical or significant emotional harm). Mindful of this policy, this Court has stressed that in custody determinations, “[t]he focus of the court’s decision must be the best interest of the child, not equity between the parties.” Bissonette, 152 Vt. at 70 , 564 A.2d at 602 . Where the rights of the parent and the best interest of the child cannot be reconciled, “the best interests of the child must be given first priority.” Paquette v. Paquette, 146 Vt. at 88 , 499 A.2d at 27 . The state’s significant parens patriae interest, which in large part seeks to protect children from abusive environments, is well served by a preponderance of the evidence standard. In my view, a complete due process analysis leads to the conclusion that a departure from the preponderance of the evidence standard is unwarranted. On balance, an uncertain enhancement in the truth-finding function of the court cannot justify a greater risk of harm to the countervailing interests of the child, the parents, and the state in the child’s welfare and safety. “[T]he minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed . . . .” *276 Santosky, 455 U.S. at 755 . In light of the overriding public policy to promote the best interests of children, children should bear no more than the already considerable risk of error they face under the preponderance of the evidence standard. III. The enhanced proof standard also creates practical problems that the Court fails to consider. The Court establishes a rule, of constitutional dimension, that “effective termination” of parental rights in a custody proceeding must be based on clear and convincing evidence, but neglects to draw the line between permissible limitation and effective termination. The trial courts are left with no practical guidance as to what would bring the elevated proof standard into play. Today’s ruling needlessly complicates the already formidable task of formulating custody determinations that further the best interests of the child. I acknowledge the problem created by acrimonious parents leveling accusations of abuse to secure custody, but an elevated burden of proof will not resolve this problem. If the real problem is the breadth of the court’s discretion to make custody determinations, that problem should be addressed directly not through a skewed due process analysis. I do not believe that the Fourteenth Amendment demands that the family court find abuse by clear and convincing evidence before severe restrictions may be placed on parent-child contact. The family court has broad discretion in custody matters. Myott v. Myott, 149 Vt. 573, 578 , 547 A.2d 1336, 1339 (1988). The record in this case might suggest a result different from that reached by the family court, but the proper role of this Court is to review for an abuse of discretion, not to substitute our judgment for that of the family court. We search only to determine whether the family court erroneously exercised its discretion, exercised it upon unfounded considerations, or exercised it unreasonably in light of the evidence. I cannot conclude that it did and would affirm. Justice Morse joins in this dissent. I agree that the requirement that the father admit the sexual abuse unacceptably compromises his right against self-incrimination. The Court reasons that “custody proceedings involving private litigants often pit decidedly interested and sometimes belligerent parties against each other[, which] militates against terminating parent-child contact based on less than clear and compelling evidence.” The same may be said for a change of custody, which can occur based on a preponderance of evidence of a substantial change of circumstances and a showing that the change is in the best interest of the child. See 15 V.S.A. §§ 665, 668. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9702841. Public record. Not legal advice.