Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-456

                                        MARCH TERM, 2016

In re T.B., Juvenile                                  }    APPEALED FROM:
                                                      }
                                                      }    Superior Court, Franklin Unit,
                                                      }    Family Division
                                                      }
                                                      }    DOCKET NO. 85-5-13 Frjv

                                                           Trial Judge: Howard E. Van Benthuysen

                          In the above-entitled cause, the Clerk will enter:

       Mother appeals from the trial court’s denial of her request, mid-trial, to allow five newly
disclosed witnesses to testify. We affirm.

        Mother is the biological parent of T.B., born in August 2009. T.B. was taken into the
custody of the Department for Families and Children (DCF) in May 2013. Mother stipulated,
and the court found, that T.B. was a child in need of care or supervision. In January 2015, DCF
filed a petition to terminate mother’s parental rights.

        After the TPR petition was filed, the court approved the parties’ stipulated discovery
schedule, which required the parties to disclose their witness lists to one another by March 12,
2015. On June 23, 2015, the court began the TPR merits hearing. The hearing was scheduled
for completion in late August 2015, primarily to allow mother to call two witnesses that she
disclosed for the first time at the close of the June 23, 2015 hearing. On the day before the
August hearing, mother’s attorney requested an extension of time to investigate forty new
witnesses that mother had just disclosed. At a hearing on the motion, mother conceded that these
witnesses were all known to her in advance of the merits hearing. The court ordered mother to
file a memorandum by October 9 showing “how each proposed witness is newly discovered and
could not have been discovered and disclosed to the other Parties in advance of the
commencement of the evidentiary hearings on the TPR request.”

        On October 13, mother filed a notice of witnesses. She listed five new proposed
witnesses but did not explain how any of them were newly discovered, or why they could not
have been discovered and disclosed in a timely fashion. Instead, mother’s counsel stated that
mother “failed to appreciate the consequences of not providing witness names . . . in a timely
fashion.” Mother stated that these witnesses knew her and had observed her with children and
could testify as to what they had observed regarding her parenting skills, her attitudes toward
children, and her ability to properly mother children. Mother asserted that despite the belated
disclosure, this was not a typical civil case where “[t]he only concern . . . is to assure the orderly
flow of the litigation and that the parties are not prejudiced by surprise and delay.” She indicated
that her belated request should be granted because the court was determining T.B.’s interests,
and could not make a fully informed decision without hearing all relevant evidence.
         In an October 2015 order, the court found that mother had failed to comply with its
earlier order and it denied mother’s motion to add five new witnesses. The court explained that
its earlier ruling had been based on a concern for fairness both to mother, whose parental rights
were at stake, and to the State and other litigants to prevent them from being ambushed by
witnesses disclosed not just on the eve of trial, but in the middle of trial. It was these concerns,
and not the orderly flow of its own docket, that had caused the court to overrule the State’s
strenuous objection to these late-disclosed witnesses, and to allow mother additional time to
investigate and explain why these witnesses should be allowed to testify. Given this, the court
found it all the more concerning that mother simply offered the witnesses instead of explaining
why they were truly newly discovered. The court found that six months had elapsed between the
filing of the TPR and the commencement of the merits proceeding, and all of the proposed new
witnesses were friends and acquaintances of mother, well-known to her at all stages of these
proceedings. Citing Follo v. Florindo, the court found that it had discretion to exclude evidence
offered in violation of a discovery order or schedule. 2009 VT 11, ¶¶ 19-21, 185 Vt. 390. It
exercised that discretion here, finding that mother failed to comply with its August 2015 order
and that her motion, out of fairness, must be denied.

       The court subsequently held the second day of the TPR hearing, and issued an order
terminating mother’s rights. Mother does not challenge any of the court’s findings or
conclusions in the TPR decision. This appeal followed.

        Mother argues that the court abused its discretion in excluding the five witnesses that she
identified in October 2015. She contends that Follo is distinguishable because it involved a civil
dispute over money, as opposed to a TPR case. Mother asserts that given the compelling
interests at stake, and the need for adequate evidence, the court should have granted her request.

        As mother recognizes, “[t]he trial court’s rulings on the admission or exclusion of
evidence are discretionary,” and this Court “will not disturb a discretionary ruling unless it is
shown that such discretion was abused or entirely withheld, and the abuse of discretion resulted
in prejudice to a party’s substantial rights.” Follo, 2009 VT 11, ¶ 19 (citations and alterations
omitted). The trial court acted well within its discretion here.

        Consistent with the rules, the court set a discovery schedule. See V.R.F.P. 2(d)(2)
(providing that “the judge shall issue a discovery order,” and the “order shall set forth dates by
which each party shall,” among other things, “disclose to any other party the names and
addresses of all witnesses whom the party intends to call as witnesses at any hearing”); see also
V.R.F.P. 3(a); V.R.F.P. 2(a)(3). More than five months after the discovery deadline, and in the
middle of the TPR merits proceedings, mother identified forty new witnesses, and two months
after that, she identified five witnesses whom she wanted to testify. The court reasonably
rejected her request. It identified and balanced the fairness concerns at issue and provided a
reasoned explanation for its decision. The fact that mother disagrees with the court’s conclusion
does not show an abuse of discretion. See, e.g., Meyncke v. Meyncke, 2009 VT 84, ¶ 15, 186
Vt. 571 (explaining that arguments which amount to nothing more than disagreement with
court’s reasoning and conclusion do not make out case for abuse of discretion).

       Our decision in Follo did not turn on the fact that it involved a civil money dispute.
Instead, we recognized that where there is a lengthy delay in disclosing witnesses, and no
“reasons or excuse” for the failure to comply with a discovery schedule, the trial court acts
within its discretion in excluding such witnesses. Follo, 2009 VT 11, ¶ 21. We reach the same
conclusion here. We note that while mother argues about the nature of TPR proceedings
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generally, she identifies no specific prejudice resulting from the court’s ruling. The evidence
here was overwhelming and unchallenged that mother had stagnated in her ability to parent and
that termination of her rights was in T.B.’s best interests.

       Affirmed.


                                              BY THE COURT:


                                              _______________________________________
                                              Paul L. Reiber, Chief Justice

                                              _______________________________________
                                              John A. Dooley, Associate Justice

                                              _______________________________________
                                              Marilyn S. Skoglund, Associate Justice




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