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Smith v. Wright

Supreme Court of Vermont

August 9, 2013

Rachel Smith
Jasper Wright

Supreme Court On Appeal from Superior Court, Orleans Unit, Family Division April Term, 2013 Robert P. Gerety, Jr., J.

Maryellen Griffin, Vermont Legal Aid, St. Johnsbury, for Plaintiff-Appellee.

Charles S. Martin of Martin & Associates, P.C., Barre, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

DOOLEY, J. Associate Justice

¶ 1.Defendant appeals from a final relief-from-abuse order in which the family division of the superior court concluded that plaintiff was a vulnerable adult and that defendant abused and exploited her. We affirm.

¶ 2. Plaintiff was born in November 1992. She was deaf for the first several years of her life, resulting in developmental delays that caused her to be held back in school. She met defendant, who was born in March 1972, while he was doing some carpentry work for her stepfather sometime between 2007 and 2009. Beginning in the summer of 2009, plaintiff accepted defendant’s invitation to ride horses with his daughter on his property. As a result, plaintiff and defendant’s daughter became best friends, and she frequented defendant’s home.

¶ 3. During the summer of 2011, defendant ran over and severely injured plaintiff’s foot while engaged in a “stupid game” in which he would drive his truck forward each time she tried to get into it. Soon after plaintiff returned from the hospital, defendant came to plaintiff’s home and confronted plaintiff’s stepfather and mother (hereinafter parents) about his desire to take plaintiff to live with him and his family. Shortly thereafter, plaintiff’s parents obtained a no-trespass notice against defendant and advised him to stay away from plaintiff. In the fall of 2011, plaintiff’s parents petitioned for a voluntary guardianship to deal with medical and legal issues surrounding plaintiff’s injury. The probate court granted their petition in October 2011, making them plaintiff’s co-guardians with the power, among others, to control her place of residence and her financial affairs.

¶ 4. On July 4, 2012, plaintiff was with her family at a fair when she saw defendant but ignored him. In the next few days, she discussed defendant and his daughter with mutual acquaintances through Facebook. She asked if defendant and his daughter missed her and wondered if defendant was mad at her. She expressed her love for defendant and his daughter and stated that she missed them. She wanted her friend to tell defendant that she was sorry for the way she acted towards him at the fair. She expressed regret with the situation that had arisen between her parents and defendant, and she indicated a desire to see defendant though she was fearful of getting into trouble again with her parents. She indicated, however, that she would be “walking up the hill” soon to see defendant.

¶ 5. On July 8, 2012, plaintiff met defendant and went to his home with him. Upon learning of his stepdaughter’s whereabouts, plaintiff’s stepfather went to defendant’s residence and insisted that plaintiff return home with him. The state police were called, and eventually a compromise was reached whereby plaintiff would stay that night at the home of a third party. The next morning, plaintiff’s stepfather went to the third party’s residence and took plaintiff home. Defendant also went to the third party’s residence later that same morning and became angry upon learning that plaintiff had been taken to her home, claiming that plaintiff was not supposed to have any contact with her parents or him until she had spoken to a neutral mental health worker. Shortly after plaintiff returned home, she revealed to her mother incidents of past sexual encounters between defendant and her.

¶ 6. On July 11, 2012, plaintiff and her mother filed a complaint for relief from abuse (RFA) pursuant to Chapter 69 of Title 33 concerning abuse prevention for vulnerable adults. In support of her claim that defendant has abused and exploited her, plaintiff stated as follows: “Two summers ago I was in the car alone with [defendant] and he putted out his penis... and he took my hand he had me rub it and I was scared and pulled it away and he took my hand he my hand.” The court issued a temporary ex parte RFA order, and held a full-day hearing on August 29, 2012. Plaintiff, defendant, and several other witnesses testified. Plaintiff testified that defendant had initiated unwanted sexual contact with her on more than five occasions starting when she was seventeen years old, including incidents where defendant had her touch and lick his penis. She further testified that this conduct “scared” her and that defendant told her not to tell anyone. Defendant denied any inappropriate sexual contact.

¶ 7. Following the hearing, the court issued a final RFA order, concluding that plaintiff was a vulnerable adult and that defendant had abused and exploited her. The order prohibited defendant from contacting plaintiff in any manner directly or indirectly for a period of two years. Defendant filed a motion to alter or amend the judgment, arguing that the trial court failed to make sufficient findings to support its conclusion that plaintiff was a credible witness. The trial court denied the motion, and defendant appealed. On appeal, he argues that: (1) the trial court failed to make sufficient findings to support its conclusions that plaintiff was a vulnerable adult and a credible witness; and (2) plaintiff failed to meet her burden of proving by a preponderance of the evidence that defendant sexually exploited her.

¶ 8. Before examining these issues, we review the applicable law and the trial court’s findings and conclusions. A “vulnerable adult” or an “interested person on behalf of the vulnerable adult” may seek an RFA order based on the alleged abuse, neglect, or exploitation of the vulnerable adult. 33 V.S.A. § 6933(a). A “vulnerable adult” includes any person over eighteen years of age who, among other things, has “a physical, mental, or developmental disability” that impairs that individual’s ability “to provide for his or her own care without assistance” or “to protect himself or herself from abuse, neglect, or exploitation.” Id. § 6902(14)(D).

¶ 9. “Abuse” is defined, among other things, as (1) behaving toward a vulnerable adult in a manner that “places life, health, or welfare in jeopardy or which is likely to result in impairment of health, ” id. § 6902(1)(A), or (2) “[i]ntentionally subjecting a vulnerable adult to behavior which should reasonably be expected to result in intimidation, fear, humiliation, degradation, agitation, disorientation, or other forms of serious emotional distress.” Id. § 6902(1)(E). “Exploitation” includes “[a]ny sexual activity” to which the vulnerable adult does not consent “or when the actor knows or should know that the vulnerable adult is incapable of resisting or declining ...

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