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Herrick v. Vigneault

Supreme Court of Vermont

October 31, 2014

Kayla L. Herrick
Edmund Vigneault

Editorial Note:

This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter.

APPEALED FROM: Superior Court, Windsor Unit, Family Division. DOCKET NO. 48-2-11 Wrdm. Trial Judge: Harold E. Eaton, Jr.

Paul L. Reiber, Chief Justice, John A. Dooley, Associate Justice, Beth Robinson, Associate Justice.



[¶ 1] In the above-entitled cause, the Clerk will enter:

[¶ 2] Mother appeals pro se from a decision of the Superior Court, Family Division, granting father's motion to modify parental rights and responsibilities and parent-child contact. Mother contends the trial court erroneously: (1) excluded or ignored key evidence; (2) failed to consider the testimony of mother's two witnesses; and (3) inconsistently allowed an unsupervised visit with mother on the day of the hearing. We affirm.

[¶ 3] The record evidence and findings may be summarized as follows. The parties are the parents of two children, aged seven and four at the time of the hearing in this matter. Under a family court order issued in August 2011, the parties shared physical and legal parental rights and responsibilities.

[¶ 4] The instant proceeding was triggered by events that occurred in October 2013. The record shows, and the court found, that on October 9, 2013, mother went to a shooting range in Hartland, Vermont with a loaded .45-caliber handgun, fired one shot, and then called the Lebanon Police Department to report that she was despondent and suicidal. Mother then spoke with an officer in the Department for almost two hours. Although she declined to give her location, the police were able to locate her through her cell phone, took her into protective custody, and brought her to Dartmouth Hitchcock Medical Center, where she was admitted for inpatient psychiatric treatment. A loaded .45-caliber handgun was found in mother's car. The hospital evaluation at the time of mother's admission noted symptoms of depression, suicidal ideation, and borderline personality disorder, as well as a history of depression and labile or unstable mood. Mother was discharged from the hospital two days later with a plan for follow-up outpatient care.

[¶ 5] In response to these events, father filed a motion for emergency relief and a motion to modify the August 2011 order, seeking sole custody of the children and supervised parent-child contact with mother. The trial court granted the emergency motion on a temporary basis pending a final decision on the motion to modify. In December 2013, the court issued a follow-up order specifying that mother's supervised visits with the children could occur at her parents' house, at mother's house with certain specified supervisors, and at the offices of Emerge.

[¶ 6] An evidentiary hearing on the modification motion was held in February 2014. Father called mother as a witness and testified on his own behalf. Mother called two witnesses: her sister and mother. In addition, the court admitted exhibits consisting of a police report concerning the incident; mother's medical records at Dartmouth Hitchcock; Facebook posts from mother; emails between mother and father; mother's treatment records at West Central Behavioral Health; and a record of mother's supervised visits with the children.

[¶ 7] In March 2014, the court issued its decision. In summary, the court found that the evidence was insufficient to determine " the current state of mother's mental health" and whether the depression, suicidal ideation, and related mental-health problems evidenced by the events in October 2013 had been adequately treated. In particular, the court observed that " [w]e are now nearly six months past the October incident, with no opinion from any professional that mother's mental-health issues have been treated satisfactorily." Although the records from West Central Behavioral Health showed at least two counseling sessions with mother, they contained no professional " opinion that mother has achieved a level of emotional stability," and the therapist's notes from a visit in late January 2014, a few weeks before the hearing, indicated that additional therapeutic work was required.

[¶ 8] The court thus found a real, substantial, and unanticipated change of circumstances, and addressed the relevant statutory criteria to determine the best interests of the children. The court found that while both parents have a loving relationship with the children, mother had not attempted to maximize her contact with them. While she had done well during visits supervised by her mother and sister, the court noted that she had refused to utilize the services of Emerge for supervised visits because she did not like their presence, suggesting that she did not fully appreciate the gravity of her actions or the need for supervision. The court further found from the parties' emails and testimony that father was more disposed to foster a positive relationship with mother, while mother was inclined to denigrate father.

[¶ 9] The court determined to award sole parental rights to father " primarily because he has provided a safe and stable home for the children" while striving to maintain their relationship with mother, who had not shown that she had attained " an emotional state of health" sufficient to safely parent the children. The court provided for continued supervised visits with mother until such time that she produced " a written opinion from a qualified mental health provider that she presents no current danger to the children and has the ability to safely parent them without supervision," at which time the ...

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