Vance v. Locke, 2021-132

Docket Nº2021-132
Citation2022 VT 23
Case DateMay 13, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 23

Aron C. Vance
v.
Miranda Locke

No. 2021-132

Supreme Court of Vermont

May 13, 2022


On Appeal from Superior Court, Orange Unit, Family Division Thomas A. Zonay, J.

Brittany A. LaBerge and Charles S. Martin, Supervising Attorney, of Martin Delaney & Ricci Law Group Barre, for Plaintiff-Appellee.

Stacey Adamski of Adamski Law, PLLC, Castleton, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Johnson, J. (Ret.), Specially Assigned

REIBER, C.J.

¶ 1. Mother appeals the family division's order modifying legal parental rights and responsibilities and parent-child contact as to son. We affirm.

¶ 2. The court first issued a parental rights and responsibilities order in 2015, based on the parties' agreement. Under this order, mother had primary legal responsibility and the parties shared physical custody. The parties had a week-on/week-off custody schedule alternating on Thursdays. Mother picked up son from school and had him until 5:00 p.m. on all weekdays.

¶ 3. In October 2017 father filed emergency motions to modify legal and physical parental rights and responsibilities and parent-child contact, alleging that mother was suicidal and unable to care for son. On the same day, the court granted a temporary modification solely on the

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basis of father's filings, awarding sole legal and physical parental rights and responsibilities to father pending a hearing to determine whether a longer-term modification would be appropriate. Mother filed a response to father's motions, seeking to end the emergency order and modify the original 2015 order to restrict father's parent-child contact. Following a hearing in January 2018 the court ordered the parties to return to the terms of the original 2015 parentage order, pending a final determination on the motions to modify.

¶ 4. Following a status conference in April 2018, the trial court issued an entry order addressing a number of issues. Although the record contains no indication that either party had proposed appointment of a guardian ad litem, the court concluded that appointment of a guardian ad litem for the child was appropriate. It reasoned as follows:

Although the child is not expected to testify, a [guardian ad litem] may provide the parties and their counsel information to help obtain an outcome in the best interest of the child. Although the [guardian ad litem] would not testify (except in rare occasions allowed under the rule) he or she may at pretrial conferences orally suggest matters that will help the court formulate issues for the final hearing (V.R.F.P. 7(f)(1)(B)), or in appropriate circumstances move for appointment of counsel for the child

The court, of its own accord, appointed an attorney for son in May 2018 and a guardian ad litem in June 2018. No written order or other explanation accompanied these appointments. Other than the April 2018 entry order, the record contains no information regarding the purpose or parameters of these roles. No one objected to either appointment.

¶ 5. Both son's attorney and guardian ad litem participated in subsequent pre-trial proceedings without objection. The court's entry orders from 2018 and 2019 reflect input from son's attorney and guardian ad litem on various pre-trial issues, including particularly the family forensic evaluation that the court ordered in June 2018. Both son's attorney and guardian ad litem opined on the need to order such an evaluation. The court charged son's attorney with obtaining records from the Department for Children and Families (DCF) related to prior child-protection

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matters involving son and mother's other two children and providing them to the forensic evaluator. In January 2020, when the evaluator could not complete her report because of a dispute with DCF regarding the appropriate level of redaction for case files, son's attorney moved the court to order DCF to produce unredacted records. The evaluator finally issued her report in February 2020.

¶ 6. The court held merits hearings in March 2020 and March 2021 on the competing motions to modify. During the hearing, neither guardian ad litem nor son testified, but both guardian ad litem and son's attorney were present. Mother's attorney objected to son's attorney making objections, as well as examining and cross-examining witnesses. Mother's attorney argued that son was not made a party to the case and that Family Rule 7 does not specifically allow a child's attorney to participate outside of juvenile cases. She contended further that Civil Rule 43 implies that only parties (or their attorneys) may question witnesses. Mother's attorney also suggested that son's attorney in this case was biased against mother because the same attorney represented son and her two other children in prior child in need of care or supervision (CHINS) proceedings. The court overruled mother's attorney's objection, reasoning that neither Family Rule 7 nor Civil Rule 43 expressly prohibited a child's attorney from participating actively in custody hearings. It determined that Civil Rules 1 and 81 and Evidence Rule 611 empowered the court to allow son's attorney to participate because no other rules prohibited such participation and doing so was appropriate and helpful to the court.

¶ 7. Son's attorney participated primarily by raising various objections and cross- examining witnesses called by the parties. Son's attorney did not call any witnesses, present oral or written argument, file motions during or after trial, or participate in any other meaningful way except to respond orally to queries from the presiding judge. During cross-examinations of mother and father, son's attorney adduced non-cumulative testimony bearing on the crux of father's

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allegations, namely, father's personal observations of mother's mental health issues, association with unsafe individuals, and substance use, and how these affected son.

¶ 8. The family division granted father's motions to modify in part. The court found that the events surrounding mother's suicide attempt constituted a real, substantial, and unanticipated change of circumstances. It also made findings on the statutory best-interests factors and concluded that they weighed in favor of modifying parent-child contact and parental rights and responsibilities. The court's order divided legal responsibility for son between the parties, awarding father responsibility for educational matters and mother responsibility for all other matters. Physical parental rights and responsibilities remained shared, but the court modified the parent-child contact schedule so that the parties alternated weeks on Fridays instead of Thursdays and mother would only care for son after school every other week.

¶ 9. On appeal, mother argues this order should be reversed because the court: (1)abused its discretion by dividing legal rights and responsibilities between the parties; (2)impermissibly relied on DCF history; (3) erred in allowing son's attorney to participate at the merits hearing; and (4) did not make sufficient findings relative to son's best interests.

¶ 10. When presented with a motion to modify legal or physical rights and responsibilities or parent-child contact, the family court must follow a two-step analysis:

First, the moving party must show that there is a "real, substantial and unanticipated change of circumstances." 15 V.S.A. § 668(a). If the party meets that burden, the court may modify legal and/or physical rights and responsibilities or parent-child contact "if it is in the best interests of the child." 15 V.S.A. § 668(a). In determining the best interests of a child, the court considers the nine factors listed in 15 V.S.A. § 665(b).

Quinones v. Bouffard, 2017 VT 103, ¶ 11, 206 Vt. 66, 179 A.3d 173 (additional citations omitted).

¶ 11. The family division has broad discretion to determine whether changed circumstances exist and what parenting arrangement is in the child's best interests. Id. ¶ 10. So long as it applied the correct legal standards, we will uphold the court's factual findings unless

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they are clearly erroneous and will affirm its legal conclusions if supported by the findings. Sochin v. Sochin, 2005 VT 36, ¶ 4, 178 Vt. 535, 872 A.2d 373 (mem.).

¶ 12. Mother contends the trial court erred in awarding father responsibility for son's education. She asserts that father was untruthful during his testimony, that the court failed to account for father's history of harassing her and interfering in her parent-child contact, and that the evidence showed she was not deficient in her decision-making responsibility but father was. Because this Court does not reweigh the evidence or make findings of credibility de novo, Mullin v. Phelps, 162 Vt. 250, 261, 647 A.2d 714, 720 (1994), we reject mother's arguments regarding father's truthfulness and the weight of certain evidence.

¶ 13. Mother also argues that the court ran afoul of 15 V.S.A. § 665(a) by ordering parents into a shared decision-making arrangement without their agreement. Because son's mental-health conditions are such that his educational and medical needs are intertwined, mother contends that awarding educational responsibility to father and medical responsibility to mother will inevitably require joint decision-making. The statute provides that "[t]he court may order parental rights and responsibilities to be divided or shared between the parents on such terms and conditions as serve the best interests of the child." 15 V.S.A. § 665(a). It states further that "[w]hen the parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent." Id. In interpreting this statute, we have held that it is not in a child's best interests to order parents to share one or more parental rights and...

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