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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-450

                                          JUNE TERM, 2013

 Holly Johnson                                         }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 Peter Johnson                                         }    DOCKET NO. 353-7-11-Cnfa

                                                            Trial Judge: Alison Sheppard Arms

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

       Father appeals from an order of the superior court, family division, extending a relief-
from-abuse (RFA) order. We affirm.

       The parties were divorced in 2009. They have two children, a daughter born in 2003 and
a son born in 2006. The final divorce decree was modified by stipulation in April 2010 to
include the following conditions: (1) father must engage in alcohol counseling for six months
beginning in February 2010; (2) father must engage in individual therapy for six months
beginning in February 2010; and (3) for a period of one year beginning in February 2010, father
must not consume alcohol before or during visits with the children.

        On July 11, 2011, mother filed a request for an RFA order, attaching a newspaper article
reporting that father had been arrested the previous Sunday for reckless endangerment, careless
and negligent operation of a vehicle, and driving under the influence (DUI) with a blood-alcohol
content over three times the legal limit while his children were in the car. The parties entered
into a stipulation that same day, and on July 21, 2011, the court entered a final RFA order based
on their stipulation. The order was for a period of one year and conditioned contact between
father and the children on: (1) father not taking alcohol or any other regulated drug within eight
hours of or during visits with the children; and (2) the presence of father’s parents or any other
mutually agreed upon person.

        On April 23, 2012, mother filed a motion to modify and extend the RFA order, requesting
that there be no contact between father and the children. Mother’s request was grounded on
allegations by a prior visitation supervisor that father had recently drunk alcohol during the
children’s visit with him. In response, father filed a motion to strike the mutually-acceptable-
supervisor requirement, asserting that mother had refused to consider any new visitation
supervisors.

       The court did not credit the account of the supervisor relied upon by mother, but
nonetheless extended the RFA order for another year, finding that extension of the order was
“necessary to ensure the continued safety of the children.” The court noted that the original and
amended divorce decree, as well as the original RFA order, acknowledged father’s past problems
concerning his abuse of alcohol. While recognizing that father had made sincere efforts to
address those problems, including completion of probation requirements and admission into a
treatment center, the court could not conclude that he no longer presented a risk of harm to the
children in light of his past history of abuse and the absence of any current assessment of his
treatment needs. As for father’s request to modify the supervision condition, the court added
father’s girlfriend, whom mother had rejected, as an additional acceptable visitation supervisor.

         Father appeals, arguing that the burden of proof should be on the party seeking to extend
an RFA order, and yet the court in this case placed the burden on him to prove a negative—that
his continued use of alcohol no longer posed a danger to his children. According to father,
because there was no evidence that he was in need of further treatment, and because in fact the
court did not find that he was in need of further treatment, the court erred by extending the RFA
based solely on his past history, which effectively placed an impossible burden on him to prove
that he no longer needed treatment. Father encourages this Court to adopt the totality-of-the-
circumstances standard set by the Supreme Judicial Court of Massachusetts for determining
whether an RFA order should be extended. See Iamele v. Asselin, 831 N.E.2d 324, 327-28
(Mass. 2005) (determining that to extend RFA order trial court must find that continued
protection is required after evaluating risk of future abuse in light of basis for initial order and
totality of conditions existing at time extension is sought).

        The court may extend an RFA order “for such additional time as it deems necessary to
protect . . . the children . . . from abuse,” and the court need not “find that abuse has occurred
during the pendency of the order to extend the terms of the order.” 15 V.S.A. § 1103(e).
Assuming without deciding that the standard set forth in Iamele is the appropriate standard, we
find no abuse of discretion in the superior court’s decision to extend the RAF order for another
year. See Raynes v. Rodgers, 2008 VT 52, ¶ 9, 183 Vt. 513 (mem.) (“In matters of personal
relations, such as abuse prevention, the family court is in a unique position to assess the
credibility of witnesses and weigh the strength of evidence at hearing. As such, we review the
family court’s decision to grant or deny a protective order only for an abuse of discretion,
upholding its findings if supported by the evidence and its conclusions if supported by the
findings.” (citation omitted)).

        Here, the superior court considered the severity of the incident that led to the initial RFA
order, particularly in light of the parties’ acknowledgment of the potential danger to the children,
as evidenced by father’s stipulation to various conditions ensuring that he not use alcohol in their
presence. The court also considered the totality of the current circumstances, including father’s
admission that he had resumed drinking and the absence of any recent evidence concerning his
treatment needs. Given these circumstances, we cannot conclude that the court abused its
discretion by extending the RFA order for an additional year.

        We find unavailing husband’s argument that the court effectively placed upon him the
burden to prove that he no longer posed a danger to the children. As a practical matter, a
respondent in father’s position might benefit from presenting evidence, expert or otherwise, that
any danger he previously posed to the children no longer existed because of his intervening
conduct or treatment. But in fact the court did not place the burden of proof on father. Rather,
the court concluded, after examining the evidence before it, that father continued to pose a risk of
harm to the children based on its evaluation of the totality of the circumstances—including
father’s past abuse of alcohol in a manner that threatened the parties’ children and his continued
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use of alcohol without any definitive evidence that his alcohol problems had been fully
addressed.

      Affirmed.

                                          BY THE COURT:


                                          _______________________________________
                                          Paul L. Reiber, Chief Justice

                                          _______________________________________
                                          John A. Dooley, Associate Justice

                                          _______________________________________
                                          Marilyn S. Skoglund, Associate Justice




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