R. F., In re, 299-76

• Decision Date: 07 June 1977
• Docket Number: No. 299-76,299-76
• Citation: 376 A.2d 38,135 Vt. 275
• Parties: In re R. F. (juvenile).
• Court: Vermont Supreme Court

Page 38

376 A.2d 38

135 Vt. 275

In re R. F. (juvenile).

No. 299-76.

Supreme Court of Vermont.

June 7, 1977.

John J. Long, Jr., Stebbins & Bradley, Hanover, N. H., for plaintiff.

Michael J. Sheehan, Windsor County State's Atty., and William J. Donahue, Deputy State's Atty., White River Junction, for State.

James L. Morse, Defender Gen., and Robert M. Paolini, Deputy Defender Gen., Montpelier, for juvenile.

Julia T. Waggener, Frank G. Mahady, White River Junction, for mother.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

DALEY, Justice.

R.F. is a minor child who, after having been found to be a child without proper parental care, was placed in the legal custody of the Commissioner of Social and Rehabilitation Services pursuant to the provisions of Chapter 12 of Title 33, Vermont Statutes Annotated. R.F.'s biological father, the appellant here, was present and represented by legal counsel at the disposition hearing. He did not appeal from the disposition order of the district court sitting as a juvenile court. However, less than five months after the order was filed, he brought a petition to modify the disposition order, alleging changed circumstances which would warrant the transferral of the child's custody and guardianship to him. From the juvenile court's order, accompanied by written findings of fact denying this petition, the father appeals.

A disposition order may be modified upon a showing that changed circumstances so require in the best interest of the child. 33 V.S.A. § 659(a). The father's petition for modification alleged that the following change of circumstances had occurred: that the Commissioner of Social and Rehabilitation Services had terminated the child's placement with his mother (the father's former wife) and had placed R.F. in a foster home, and that the father and R.F. had been "spending a good deal of time with each other" since the disposition order was filed. Furthermore, it was revealed during the course of the hearing upon this petition that the father had been employed for a period of six weeks, that the father and his present wife had undergone counseling, and that these two adults had, two days prior to the hearing, resumed living together in a mobile home. They had earlier been separated for a period of one and one-half years. The juvenile court, based on its finding that the only material changes were the father's present employment and the resumption of marital relations with his second wife, determined that these changes were not of sufficient material substance to support the father's petition.

A juvenile court, in passing upon a petition for modification, is called upon to exercise sound judicial discretion. Cf. Birnbaum v. Birnbaum, 135 Vt. ---, 370 A.2d 204, 205 (1976). Its decision is not to be set aside unless there has been a showing that "the discretion of the court was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Gerety v. Gerety, 131 Vt. 396, 402, 306 A.2d 693, 696 (1973). The standard which governs the review of petitions for modification has previously been articulated by this Court:

Change of circumstances is not ground for modification. . . . It is a prerequisite. Thus, the petitioner must first prove a "substantial change in the material circumstances" and next prove that under the new conditions a change . . . is in the best interests of the child. (In re Petition of Certain Neglected Children, 134 Vt. 74, 76, 349 A.2d 228, 229 (1975)).

We hold that, notwithstanding certain minor factual errors in the court's findings of fact, the court's determination that the father had failed to establish the requisite substantial change in material circumstances is not clearly untenable or unreasonable and must stand. Indeed, a detailed inquiry into the...