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In re Balivet

Supreme Court of Vermont

May 9, 2014

In re Ernest Tobias Balivet

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

Original Jurisdiction from Judicial Conduct Board. Steven A. Adler, Chair.

The Board's sanction is amended to " public reprimand" ; in all other respects the Board's sanction for respondent's violation of Canon 3(B)(8) is affirmed.

Barbara R. Blackman of Lynn, Lynn & Blackman, P.C., Burlington, for Appellant.

P. Scott McGee of Hershenson, Carter, Scott & McGee, PC, Norwich, for Appellee.

Present: Robinson, J., and Zonay and Tomasi, Supr. JJ., and Morse, J. (Ret.), and Pineles Supr. J. (Ret.), Specially Assigned

OPINION

Page 795

Per curiam.

[¶1] The formal complaint against respondent, Judge Ernest Balivet, alleged violations of Canon 3(B)(8) of the Vermont Code of Judicial Conduct. The Judicial

Page 796

Conduct Board concluded that respondent violated the canon and recommended a sanction of a private letter of reprimand and conditions on the performance of judicial duties. This Court ordered review on its own motion, pursuant to Rule 12(3) of the Rules of Supreme Court for Disciplinary Control of Judges.

I.

[¶2] The facts of the proceedings that form the basis of the disciplinary charges, as stipulated to by respondent and adopted by the Board, can be summarized as follows. In November 2001, respondent appointed a child's grandfather to be her guardian, with the consent of the child's parents.[1] On January 8, 2002, father and mother filed a motion to revoke the guardianship. On February 4, 2002, respondent held an evidentiary hearing on the motion. Respondent does not recall his words from the bench at this hearing. His handwritten notes from the hearing state, " pending ruling would be motion denied, parents were unsuitable, and exploring visitation plan." [2] The hearing was only partially recorded and it was not contemporaneously transcribed. No written decision and order issued after the hearing, and there is no entry on the docket to reflect the hearing's resolution or that a hearing was held.

[¶3] On October 29, 2004, father filed a second motion to terminate the guardianship. Shortly thereafter, respondent appointed a guardian ad litem for the child. Respondent held a hearing in January 2005 on father's second petition to terminate the guardianship. Again, no order appears in the file, and there is no docket entry referencing the hearing, although a Notice of Hearing was issued by the court. The parties agree that the hearing took place, and have provided a transcript of it, but do not agree as to the outcome of that hearing.

[¶4] With the consent of the child's mother but not her father, grandfather filed an adoption petition in April 2005. In June 2005, grandfather filed a petition to terminate father's parental rights (TPR) after father refused to consent to the proposed adoption. This was the first time that respondent had encountered such a motion and he was uncertain how to proceed. In addition, respondent did not believe grandfather's motion would be successful in light of the evidence adduced at two prior evidentiary hearings. Respondent did not schedule a hearing on that motion until September 2006 -- after grandfather filed a motion for a writ of mandamus in the superior court. Respondent stipulated before the Board that the hearing on grandfather's motion to terminate father's parental rights was unnecessarily delayed and that he failed to act expeditiously as required by 15A V.S.A. § 3-504(a).

[¶5] The hearing on grandfather's motion was held over three days in September and October of 2006. At the close of the hearing, respondent orally denied grandfather's petition to terminate father's parental rights. The docket reflects that the motion to dismiss the TPR petition was granted, but there is no written order in the court file.

Page 797

[¶6] Prior to the October 2006 hearing, father raised the issue of his motion to terminate the guardianship. This motion was not entered in the docket. Respondent believes that he had denied that motion to terminate the guardianship at the January 2005 hearing. He did not address it at the TPR hearing. Grandfather appealed respondent's denial of the TPR petition to superior court.

[¶7] The next month, grandfather also filed a motion in the probate court to stay father's attempts to terminate grandfather's guardianship. Father filed an opposition, and respondent later issued a stay of any further court action on father's attempts to terminate the guardianship pending grandfather's appeal. The date of this order is unclear as there is no docket entry or order in the file reflecting it.

[¶8] Following the TPR hearing, in November 2006 mother filed a motion to revoke her consent to adoption, signaling to respondent that father and mother had reunited after having been separated earlier during the guardianship. According to respondent's handwritten notes, at a status conference in April 2007, respondent indicated that he would delay ruling on mother's motion until after the appeal of grandfather's TPR motion. Respondent issued an order granting mother's motion to revoke her consent in March 2008 pursuant to mother's request for a ruling from the probate court regarding her party status " as directed by the superior court entry order dated March 11, 2008." About a week later, mother indicated her support for terminating grandfather's guardianship.

[¶9] In April 2008, grandfather filed a motion to terminate mother's parental rights, which respondent denied. Grandfather appealed the denial to the superior court, which remanded the case back to the probate court on August 20, 2008, for development of the record concerning mother's relinquishment and adoption petition. Although this order was sent to counsel, there is no docket entry at either the superior court or the probate court with respect to the delivery of the remand order to the probate court. By notice dated March 9, 2009, the probate court gave notice to mother of a hearing on grandfather's petition to terminate mother's parental rights and for adoption. The docket entry for the April 8 hearing indicates " ruling for petitioner," and respondent issued a written order dated May 6, 2009, terminating mother's parental rights. Mother did not appeal.

[¶10] In the meantime, by letter dated January 6, 2009, father's attorney wrote to the probate court to ask why a hearing on father's motion to terminate the guardianship had not been scheduled. By that time, the probate court had stayed proceedings to terminate the guardianship pending the superior court decision on grandfather's appeal in connection with his motion to terminate father's parental rights. In July 2009, at the parties' request, respondent issued a pro forma denial of father's motion to terminate ...


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