Articles Posted in Vermont Supreme Court

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Husband, Mark Atherton, appealed the trial court’s order denying his motion to modify spousal maintenance payments to wife, Holly Atherton, for failure to show a real, substantial, and unanticipated change in circumstances as required by 15 V.S.A. 758. The Vermont Supreme Court concluded the trial court applied an erroneous standard when determining whether husband’s employment termination resulted in a “real, substantial, and unanticipated change in circumstances” for the purposes of modification of the spousal maintenance order. The Court remanded this case back to the trial court for further proceedings. View "Atherton v. Atherton" on Justia Law

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Mother appealed an order concluding that her children were children in need of care or supervision (CHINS) due to educational neglect. In April 2018, the State filed a petition alleging that B.C., born in January 2007, Bo.B., born in May 2012, and Br.B., born in April 2013, were CHINS for lack of proper education necessary for their well-being. B.C. had been referred to an educational support team because she was not meeting certain achievement levels in her educational program. In prior years, there had been three educational neglect/truancy assessments involving B.C. In January 2018, the assistant principal reported to the Department for Children and Families (DCF) that B.C. had missed twenty-two days and Bo.B. had missed thirty-two days of school and all absences were unexcused. By March 2018, B.C. and Bo.B. had missed thirty-eight and fifty days of school, respectively. DCF contacted mother, who asserted that the absences were occurring because she was not receiving sufficient support from the school, the children were often absent due to illness, and transportation was a barrier. When asked, mother did not appear to understand the details of Bo.B.’s Individualized Education Plan (IEP). DCF set up a plan to implement services through NCSS in March, however, mother cancelled the meeting. The court found that the three children were CHINS due to the parents’ inability to provide for the children’s educational needs. The court found that the children’s absences resulted in missed educational opportunities that put them at risk of harm, especially in light of their needs. On appeal, mother argued: (1) the court erred in not requiring the State to demonstrate that the children’s absences were without justification; (2) the evidence did not support the court’s finding that missing school caused the children harm; (3) the existence of IEPs for the two young children, who were not legally required to attend school, did not support a finding of educational neglect; and (4) the court erred in admitting the school attendance records. The Vermont Supreme Court affirmed as to B.C. and reversed and remanded the CHINS determinations as to Bo.B. and Br.B. "[T]he evidence was insufficient to demonstrate that Bo.B. and Br.B. were at risk of harm for educational neglect given that they were not required to attend school and mother could discontinue the services related to their IEPs without any presumption of neglect." View "In re B.B., B.C., and B.B., Juveniles" on Justia Law

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The parties’ daughter was born in July 2002. In November 2012, the family division of the superior court entered a final order awarding primary legal rights and responsibilities for daughter to mother, subject to an obligation to consult with father prior to making any major decisions. The court ordered the parties to share physical rights and responsibilities. The schedule set forth in the order called for daughter to spend approximately half of her time with each parent. The parties were required to attempt to resolve any disputes about parenting issues through mediation before returning to court. In August 2017, father filed a motion to enforce parent-child contact. He claimed that mother had consistently interfered with his contact with daughter and recently had prevented him from seeing daughter at all. Mother denied father’s allegations that she had interfered with his contact with daughter. She asserted that daughter, who was now fifteen years old, felt uncomfortable and anxious around father and no longer wanted to have contact with him. After an unsuccessful attempt at mediation, the parties renewed their motions. Father appealed the superior court’s decision granting mother’s motion to modify parental rights and responsibilities and permitting father to have contact with the parties’ minor child only if the child agreed. The Vermont Supreme Court affirmed the modification of parental rights and responsibilities, but reversed and remanded the parent-child contact order. The Court determined the family court should consider contact for consistent with the child's best interests. View "Wright v. Kemp" on Justia Law

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N.L. was born in August 2014. In January 2016, she was taken into state custody because both parents were using illicit substances, father was facing jail time on a charge alleging domestic abuse against mother, and mother was unable to care for the child due to her drug addiction and homelessness. N.L. spent several months in foster care. A conditional custody order (CCO) returned N.L. to mother’s care after mother completed a substance-abuse program, and they resided for several months in a residential treatment program at Lund Family Center. The CCO remained in effect until February 27, 2017, when the Department for Children and Families (DCF) closed the case. The underlying case was initiated based on an incident that occurred in August 2017, at which time DCF was investigating reports of drug use and domestic violence in the home. The family division of the superior court granted a petition to terminate mother’s parental rights to her child, N.L., but denied the petition concerning father. Mother appealed the termination of her parental rights, and N.L. appealed the court’s decision not to terminate father’s parental rights. After careful review of the trial court record, the Vermont Supreme Court affirmed termination of mother’s parental rights and reversed the court’s order declining to terminate father’s parental rights. The matter was remanded for the limited purpose of directing the family division to grant the petition to terminate father’s parental rights. View "In re N.L." on Justia Law

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M.C. was taken into the custody of the Department for Children and Families (DCF) in 2014 when he was six years old. He was adjudicated as a child in need of care or supervision. In January 2018, M.C.’s parents voluntarily relinquished their parental rights in him. DCF had custody of M.C. In this appeal, the issue presented to the Vermont Supreme Court related to 33 V.S.A. section 5926, which provided neglected or unmanageable children subject to the Interstate Compact on the Placement of Children the right to a hearing before being placed out-of-state. The trial court concluded that only juveniles whose parents’ rights had not yet been terminated were entitled to a hearing under section 5926. Because M.C. did not fall within this group, the court denied his request for a hearing. M.C. appealed, arguing that this interpretation violated his state and federal constitutional rights, the remedy for which was to afford all children the right to a hearing under section 5926. The State agreed M.C. was entitled to a hearing; therefore, the Supreme Court did not reach M.C.’s constitutional argument because it agreed with the State that the plain language of 5926 afforded all neglected and unmanageable children the right to a hearing before being placed out of state. The Court therefore reversed the trial court’s decision and remanded for a hearing. The Court also granted the State’s unopposed request to preserve the status quo during the remand proceedings. Unless otherwise ordered, M.C. remained in his then-current out-of- state placement pending the trial court’s decision on remand. View "In re M.C., Juvenile" on Justia Law

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A father appealed the termination of his parental rights to his four children. On appeal, he raised three arguments regarding the court’s termination decision: (1) the termination of parental rights (TPR) petition was premature because the three-month period for reunification provided for in the case plan had not expired and the Department for Children and Families (DCF) had not made reasonable efforts to reunify father with the children insofar as it refused to make the children available for expanded visitation that would have enabled reunification to occur; (2) the evidence did not support the court’s determinations that father’s progress had stagnated and that father would not be able to parent in a reasonable period of time; and (3) several specific findings were unsupported by the evidence. He separately appealed the trial court’s “reasonable efforts” finding. Finding no reversible error, the Vermont Supreme Court affirmed. View "In re D.F., H.F., M.F. and D.F." on Justia Law

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The Vermont Supreme Court withdrew its July 6, 2018 opinion in this matter, determining the State did not have a statutory right to appeal in this case. Defendant Liana Roy was charged with custodial interference for taking her four-year-old daughter, who was then in custody of the Department for Children and Families (DCF), on a two-day trip out of the state without DCF’s permission. After the State rested its evidence at trial, defendant moved for a judgment of acquittal, arguing the evidence failed to demonstrate that she interfered with DCF’s custody to the degree necessary for 13 V.S.A.2451 to apply. At most, defendant argued, this was just “a visit gone bad.” The court denied this motion, holding that the State established the essential elements of its case. After defendant presented her evidence and the State called a rebuttal witness, the State rested and defendant renewed her motion for a judgment of acquittal. The court again denied the motion. The jury convicted. Defendant subsequently moved to set aside the verdict, V.R.Cr.P. 29(c), or for a new trial, V.R.Cr.P. 33, arguing that nothing in the custody order specifically put defendant on notice that she was acting in violation of the authority of the legal custodian, so the State had failed to demonstrate the requisite intent to deprive or interfere with DCF’s custody. The trial court agreed and issued a written decision in July 2017 granting defendant’s motion for a judgment of acquittal. The court noted that “the jury’s verdict was reasonable” based on the instructions given during the trial. But the court explained that it had erred in not instructing the jury that, to prove custodial interference when DCF is the custodian, the State must produce evidence of “a court order . . . detail[ing] the parent-child contact parameters.” In this amended opinion, the Supreme Court considered whether the State had a statutory right to appeal the trial court’s post-guilty-verdict judgment of acquittal, and, if not, whether the Supreme Court should use its authority pursuant to Vermont Rule of Appellate Procedure 21 to grant the State the extraordinary remedy of reversing the trial court’s ruling and reinstating the guilty verdict. The Court concluded the State did not have a statutory right to appeal in this case, and declined to exercise its authority to grant extraordinary relief. View "Vermont v. Roy" on Justia Law

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Mother appealed a superior court order that adjudicated her son, B.C., a child in need of care or supervision (CHINS). She challenged: (1) the court’s admission of evidence of father’s out-of-court statements; (2) the court’s reliance on findings from a prior CHINS determination; and (3) the sufficiency of the evidence, especially given that B.C. was in the custody of the Department for Children and Families (DCF) when the State filed the petition. The Vermont Supreme Court concluded the family division erred by admitting evidence of father’s out-of-court statements, and that without that testimony, and in light of the court’s findings with respect to other evidence, the remaining evidence would be insufficient to support a CHINS determination. Accordingly, the Supreme Court reversed the trial court’s order. View "In re B.C." on Justia Law

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Plaintiffs Willis S. Sheldon, individually as the father of Dezirae Sheldon, and as administrator of the Estate of Dezirae Sheldon, appealed the grant of summary judgment to defendant Nicholas Ruggiero, an administrative reviewer with the Vermont Department for Children and Families (DCF). Plaintiffs argued that defendant negligently failed to report an allegation that Dezirae’s stepfather Dennis Duby abused Dezirae, eventually leading to Dezirae’s murder at Duby’s hands. Plaintiffs presented alternative theories for defendant’s liability under: (1) Vermont’s mandated-reporter statute, which they argued created a private right of action; (2) common-law negligence; or (3) negligent undertaking. After review, the Vermont Supreme Court concluded that even if the mandated-reporter statute creates a private right of action, or alternatively, even if defendant had a common-law duty to report suspected abuse, plaintiffs’ negligent-undertaking claim failed because defendant acted reasonably and prudently in his role as a DCF administrative reviewer. In addition, the Court concluded that defendant never undertook DCF’s statutory obligation to investigate all potential sources of Dezirae’s injuries. View "Sheldon v. Ruggiero" on Justia Law

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A husband appealed a final divorce order, challenging the trial court’s property division, and claimed the court erred in awarding him an amount of spousal maintenance outside the statutory guideline without stating a reason for diverging from the guideline. Finding no reversible error, the Vermont Supreme Court affirmed. View "Jaro v. Jaro" on Justia Law