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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-324

                                      FEBURARY TERM, 2013

 In re T.T., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Lamoille Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 12-2-09 Lejv

                                                            Trial Judge: Dennis R. Pearson

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

        Father appeals from an order of the superior court, family division, terminating his
parental rights to the minor T.T. He contends the trial court erred in: (1) taking judicial notice of
certain criminal records; and (2) relying on a substantiation by DCF that father had sexually
abused another child. We affirm.

        The material facts may be summarized as follows. T.T. was born in November 2003 and
placed in mother’s custody pursuant to a parentage order. A CHINS petition was filed in
February 2009, after mother had left T.T. with father and his paternal grandfather for several
months, based on reports that the child was neglected and not attending school regularly, and that
father had recently been charged with several criminal offenses. The parties stipulated to a
CHINS adjudication in May 2009, and thereafter the child was returned to mother’s home and
father was accorded supervised visitation. In September 2009, however, the child was taken into
emergency detention and placed in foster care, where he has since remained.

        Subsequent case planning again called for reunification with mother and supervised visits
with father, observing that father suffered from significant mental health and substance abuse
problems, and was currently incarcerated on offenses involving drug possession, burglary, and
driving with a suspended license. Plan revision in August 2010 indicated that mother had failed
to engage in services, and that father was facing additional charges of aggravated domestic
assault while on probation for the previous offenses. The plan also noted that father refused to
engage mental health services or parenting classes during the period when he was not
incarcerated, and recommended that he engage in these and other counseling programs for
substance abuse and domestic violence.

        Father did not progress according to plan. During a supervised visit in November 2010,
father became agitated and threatened a DCF worker. Thereafter, he refused to participate in
supervised visits with T.T. He was subsequently re-incarcerated, and has largely remained in
prison through the remainder of these proceedings on a number of convictions for driving
offenses, violations of abuse prevention orders, and furlough and probation violations.
        In August 2011, the State filed a TPR petition as to both parents. In November 2011,
mother voluntarily relinquished her parental rights. After a contested hearing as to father’s rights
in February 2012, the court issued a written decision the following June. The trial court found
that father had refused to participate in a variety of parenting, substance abuse, and domestic
violence programs, had demonstrated no understanding of T.T.’s developmental needs and
challenging social behaviors, and showed no insight into his responsibility for the child’s
problems. The court also found that father had refused to participate in supervised visits, had not
seen the child for nearly a year and half prior to the hearing, had no positive relationship with the
child, and had played no constructive role in his development.

        Based on these findings, as well as father’s extensive criminal record and history of failed
supervision, the court concluded that father could not resume parental responsibilities within a
reasonable period of time, nor maintain the sustained level of parental supervision and care
required by T.T., even if he were released from prison at his earliest release date of mid-2013.
The court observed that T.T. continued to struggle with behavioral issues in his current
therapeutic foster placement and at school, but noted that DCF was attempting to find an
appropriate adoptive home and permanent placement. Accordingly, the court granted the State’s
petition. This appeal followed.

        Father contends the court erred in taking judicial notice of certain information relating to
his criminal record. To obtain “relevant detail and record back-up” the court indicated that it had
consulted the judiciary website to take judicial notice, pursuant to V.R.E. 201, of defendant’s
convictions and resulting sentences, as well as DOC records showing his incarcerative status and
history. Defendant asserts that the records were not the properly subject of judicial notice.

        We need not resolve the claim, however, because it is clear that any error in this regard
was harmless. See In re G.F., G.F., & J.F., 2007 VT 11, ¶ 15, 181 Vt. 593 (mem.) (recognizing
that “[o]ur harmless error standard for CHINS and termination of parental rights cases has been
quite liberal”). Much of defendant’s extensive criminal record was already a part of the record
as set forth in the CHINS petition and the series of case plans and disposition reports prepared by
DCF between July 2009 and August 2011. Although the court, in a footnote, described the
additional detail obtained through judicial notice as “critical,” the decision is based substantially
on undisputed findings that father had completely failed to engage in services essential to the
child’s welfare, had played no constructive role in the child’s life, and would be in no position to
resume parental care and attend to the child’s substantial needs when he was ultimately released
from prison, either at his earliest release date in mid-2013 or earlier on furlough. Afforded an
opportunity to point out any impropriety, inaccuracy or unfair prejudice in considering the
documentation noticed by the court, father contested none of it. See V.R.E. 201(e), (lacking
prior notice, hearing may be requested after fact to challenge “the propriety of taking judicial
notice and the tenor of the matter noticed”). Nor is any prejudice made out now. Accordingly,
there is no basis to conclude that any additional information obtained by the court through
judicial notice played an undue role in the court’s decision, and thus no grounds to disturb the
judgment.

        The same reasoning applies to father’s claim that the trial court erred in relying on
findings concerning a substantiation by DCF that he had abused mother’s younger child by a
different father. While father is correct that a substantiation of abuse by DCF requires a lower
standard of proof than clear and convincing evidence, In re Selivonik, 164 Vt. 383, 388 (1995),
the court here did not find that such abuse had occurred, but merely noted that father had
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declined to undergo a psychosexual evaluation recommended by DCF. This issue played no
significant role in the court’s decision, which—as noted—was supported by numerous
undisputed findings showing that he could not resume parental responsibilities within a
reasonable time. Accordingly, any conceivable error was harmless. In re G.F., G.F., & J.F.,
2007 VT 11, ¶ 15.

      Affirmed.

                                             BY THE COURT:

                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Brian L. Burgess, Associate Justice




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