Peralta v. Brannan

• Decision Date: 06 November 2020
• Docket Number: No. 2020-060,2020-060
• Citation: 2020 VT 100
• Court: Vermont Supreme Court
• Parties: Ashton Peralta v. Ashlie Brannan

2020 VT 100

Ashton Peralta v. Ashlie Brannan

No. 2020-060

Supreme Court of Vermont

September Term, 2020

November 6, 2020

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

On Appeal from Superior Court, Chittenden Unit, Family Division

Thomas Carlson, J.

Ashton Peralta, Pro Se, Burlington, Plaintiff-Appellee.

Samantha V. Lednicky of Murdoch Hughes Twarog Tarnelli, Burlington, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. REIBER, C.J. Mother appeals from the trial court's determination that Ashton Peralta is a de facto parent of A.Z. pursuant to 15C V.S.A. § 501. She argues that the court erred both in denying her motion to dismiss and in evaluating the factors set forth in § 501(a). We affirm.

¶ 2. In June 2019, following a long-term relationship with mother, Mr. Peralta filed a petition to be declared a de facto parent of A.Z., born in June 2010. Mother and Mr. Peralta are also the biological parents of S.P., born in January 2016.

¶ 3. Mother moved to dismiss Mr. Peralta's petition. She argued that A.Z.'s parentage was determined by a New Mexico court in a 2012 parentage action and Vermont must give this decision full faith and credit. The court denied mother's motion. It explained that the New Mexico order addressed biological parentage, not de facto parentage, and under Vermont law, a child can have a de facto parent and two biological parents. It found nothing in the New Mexico order to preclude that possibility here.

¶ 4. Following a merits hearing, the court recognized Mr. Peralta as A.Z.'s de facto parent. It made the following findings. A.Z.'s biological father has played no role in her life; he did not appear in this case or answer Mr. Peralta's petition. He last appeared by telephone in the January 2012 parentage action in New Mexico. At that time, a New Mexico court ordered that he have no contact with A.Z. until he took certain steps related to his history of domestic violence. A.Z.'s biological father had not been heard from since.

¶ 5. Mr. Peralta and mother met online. In late 2011, Mr. Peralta relocated from Georgia to New Mexico to move in with mother and A.Z. They all moved to Connecticut about six months later to live with Mr. Peralta's parents. In 2016, mother and Mr. Peralta had a child, S.P. Not long thereafter, the parties moved to Vermont with Mr. Peralta's parents. With the exception of one year in which they had their own apartment, the parties lived with Mr. Peralta's parents between May 2012 and December 2017, when Mr. Peralta moved out. Mother and the children stayed with Mr. Peralta's parents until September 2018. The court found that Mr. Peralta's parents had been hosts, financial supporters, grandparents, and back-up caregivers to A.Z. since 2012 and S.P. since her birth.

¶ 6. As between mother and Mr. Peralta, the court found that mother was A.Z.'s primary caregiver. Mr. Peralta co-parented A.Z. before and after work and, as of 2015, he and A.Z. shared "Daddy's Day" on Saturdays. Mr. Peralta attended medical and dental appointments for A.Z. between 2011 and at least mid-2016. The parties took family trips and otherwise acted as an intact family. The court found this reflected in family photographs between 2012-2016. It further foundthat photographs of Mr. Peralta and A.Z. between 2017-2019 reflected his ongoing role as a father to A.Z. and the ongoing role of his family members in A.Z.'s life.

¶ 7. In mid-2016, Mr. Peralta began to abuse depressant medication known as "benzos." By late 2016, he was regularly "dopey," paranoid, and grumpy. Mother and Mr. Peralta's relationship suffered. They frequently argued but there was little or no evidence of physical abuse. During this time, Mr. Peralta was not a present parent. In early 2017, while Mr. Peralta was still living in the home, he appeared to overdose while the children were sleeping. He spent a week in detox at the University of Vermont Medical Center in January 2017, and another week in February 2017. His verbal behavior became increasingly threatening.

¶ 8. In late 2017, mother believed that Mr. Peralta tried to poison her in one of his paranoid periods. He was charged with crimes that were later dismissed and expunged. He agreed to a relief-from-abuse (RFA) order without findings, which was later extended until the spring of 2019. Mother agreed to terminate the RFA order in connection with an agreement in S.P.'s parentage case.

¶ 9. As indicated above, Mr. Peralta moved out of the home in December 2017; mother and the children stayed with Mr. Peralta's parents until they had a falling-out in September 2018. Mr. Peralta's parents watched the children and helped mother get her driver's license. They also supervised Mr. Peralta's visitation.

¶ 10. At the time of the hearing, Mr. Peralta had been drug-free for about eighteen months. He had stopped using drugs in late 2017 but relapsed in the spring of 2018. He then engaged in an intensive outpatient program, graduating in July 2018, and he had been sober since. Mr. Peralta had been seeing the same counselor since January 2019, and he had been working full-time since February 2019. He lived with his parents and planned to remain in counseling for both substance abuse and anxiety.

¶ 11. Mr. Peralta had been seeing A.Z. at his parents' home on a set schedule since November 2017; he had also been seeing S.P. on a regular schedule since March 2019. A.Z. had always and continued to recognize Mr. Peralta as her "daddy."

¶ 12. The court found that A.Z. was nine-and-a-half years old and Mr. Peralta was the only father figure she had ever known, although Mr. Peralta's father also played a very important role in her life. She was outgoing, bright, and doing well in school. She had many friends and was close to her sister, S.P. She was also very close to Mr. Peralta's parents and to his parents' twelve-year-old adopted daughter.

¶ 13. Based on these and other findings, the court evaluated the factors set forth in 15C V.S.A. § 501(a). Pursuant to that section, "the court shall adjudicate the person who claims to be a de facto parent to be a parent of the child if the person demonstrates by clear and convincing evidence that:

(A) the person resided with the child as a regular member of the child's household for a significant period of time;

(B) the person engaged in consistent caretaking of the child;

(C) the person undertook full and permanent responsibilities of a parent of the child without expectation of financial compensation;

(D) the person held out the child as the person's child;

(E) the person established a bonded and dependent relationship with the child that is parental in nature;

(F) the person and another parent of the child fostered or supported the bonded and dependent relationship required under subdivision (E) of this subdivision (1); and

(G) continuing the relationship between the person and the child is in the best interests of the child.

Id. § 501(a)(1)(A)-(G).

¶ 14. The court concluded that Mr. Peralta satisfied his burden of proof as to each factor. It found the first six factors satisfied during the first four-to-five years of Mr. Peralta's relationshipwith mother and A.Z. It further held that, notwithstanding Mr. Peralta's mental-health and substance-abuse challenges, the evidence established that continuing the parental relationship between A.Z. and Mr. Peralta was in A.Z.'s best interests. Looking to the best-interest criteria in 15 V.S.A. § 665 for guidance, the court found most compelling A.Z.'s happy and outgoing disposition. She had been raised thus far by a blended family with Mr. Peralta as her father and the court found her disposition to be the best evidence that her rearing had been a success.

¶ 15. The court did not consider Mr. Peralta's period of substance abuse disqualifying. It had no doubt that Mr. Peralta had the "ability and disposition to provide [A.Z.] with love, guidance, and material support, particularly if he is sober and taking care of his mental-health needs."

¶ 16. The court further concluded that A.Z. was thoroughly adjusted to her long-established and nourishing relationships with Mr. Peralta and his family, relationships that would have no assurance of continuing if it did not adjudicate Mr. Peralta a de facto parent. The court determined that discontinuing these relationships would likely be devastating to A.Z., and it noted that she had struggled to make sense of how Mr. Peralta could be S.P.'s father but not hers. While there was evidence that Mr. Peralta could be controlling in his relationship with mother, the court found little to no evidence of physical abuse between them and none as to A.Z. Although it could imagine mother being afraid of Mr. Peralta in the past, particularly when he was abusing drugs and getting paranoid, the court did not find any other basis for fear. As long as Mr. Peralta was sober and taking care of his mental health, the court found that he was a positive force in A.Z.'s life and he was not a threat to mother.

¶ 17. The court thus found that Mr. Peralta was A.Z.'s de facto parent, while mother retained sole legal and physical rights and responsibilities for her. The court consolidated this case with S.P.'s parentage case and concluded that it was in A.Z.'s best interests to have the same contact schedule with Mr. Peralta as did S.P., at least to start. The court explained that the sisterswere very close and there was no distinguishing fact between them with respect to their time with Mr. Peralta. Mother appeals from the court's decision.

¶ 18. Mother first challenges the court's denial of her motion to dismiss,...