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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-087

                                     NOVEMBER TERM, 2013

 In re C.G., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Washington Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 35-3-09 Wnjv

                                                            Trial Judge: Thomas J. Devine

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

       Father appeals from a decision of the superior court, family division, granting a petition
for permanent guardianship filed by the maternal grandmother of the minor C.G. Father
contends the court improperly: (1) placed the burden of proof on father; (2) made findings
unsupported by the evidence; (3) took judicial notice of certain evidence; and (4) failed to issue
an order on visitation. We affirm.

        The record evidence may be summarized as follows. C.G. was born in July 2000.
Mother and father were not married. Parentage was established in 2002, when mother and father
agreed to share parental responsibilities. The child resided principally with mother, and was
adjudicated CHINS in September 2006 based on mother’s inability to provide a stable
environment for the child. Allegations by the child suggesting sexual abuse by father resulted in
a case plan requirement that father undergo a risk-assessment evaluation, as well as parenting
classes and anger-management counseling. Father refused to undergo the evaluation, and contact
with the child was suspended in February 2007. Although no criminal charges were filed, DCF
substantiated the claim of abuse. The child was returned to mother pursuant to a reunification
plan in May 2007.

        A new CHINS petition was filed in March 2009 following mother’s hospitalization for
prescription drug abuse. The court awarded temporary custody to the child’s maternal
grandparents. Mother stipulated to a merits adjudication in July 2009. Following a contested
disposition hearing in September 2009, the court issued a decision rejecting father’s request for
custody and approving a transfer of custody to the maternal grandparents. The court found that
father had not had contact with the child since early 2007 based on his refusal to undergo an
evaluation to determine the risk, if any, he posed to the child. The court also noted that father
had failed to participate in the other services recommended in the original case plan, was
unemployed and had no stable home, and demonstrated no insight into the child’s present and
future developmental needs. The court also found that the child had since adapted well to her
home with her maternal grandparents, and was thriving in her school and community.

       In May 2012, the maternal grandmother filed a petition for permanent guardianship
pursuant to 14 V.S.A. § 2664. The court held a hearing in January 2013, and shortly thereafter
issued a written decision granting the petition. Based on the case record and the testimony of the
maternal grandmother and of father, the court found that all of the statutory criteria for the
establishment of a permanent guardianship had been established by clear and convincing
evidence. See id. § 2664(a) (providing that, before issuing order for permanent guardianship,
court must find that statutory criteria have been established “by clear and convincing evidence”).
While noting that the grandparents had divorced, the court found that the split was amicable, that
the child continued to see her grandfather, that grandmother continued to do “an admirable job of
meeting” the child’s material needs of providing a loving, stable home, and that she was
committed to providing for C.G. for the duration of her minority. Mother did not contest the
guardianship. As to father, the court found that he had not seen or supported the child for over
five years, had not engaged in the previously required risk-assessment evaluation or services, had
demonstrated no interest in the child’s welfare or understanding of her needs, and provided no
evidence on how he would care for the child. In his testimony, father focused almost entirely on
challenging the need for a risk-assessment, and invoked the Fifth Amendment on several
occasions when cross-examined. The court thus concluded that father could not provide
adequate care for the child or resume parental responsibilities within a reasonable period of time,
and the permanent guardianship was in the best interests of the child. This appeal followed.

           Father first contends the trial court improperly placed the burden of proof on him. The
statute governing the creation of a permanent guardianship provides that, before issuing such an
order, “the court shall find by clear and convincing evidence” that certain enumerated criteria
have been met, 14 V.S.A. § 2664(a), and we have indicated that the burden of proof falls on the
proponent of the guardianship to meet those requirements. See In re D.G., 2006 VT 60, ¶ 3, 180
Vt. 577 (mem.) (observing in the context of permanency planning hearing that the trial court
properly “acknowledged . . . the clear-and-convincing-evidence standard” for establishing a
permanent guardianship under 14 V.S.A. § 2664(a) and “defined in detail the State’s burden in
meeting that standard”). The record here—summarized above—demonstrates that the trial court
applied the appropriate clear-and-convincing-evidence standard, and determined that the
petitioner/grandmother had adduced ample evidence to establish each of the statutory
requirements. Nothing in the record suggests, as father claims, that the trial court improperly
shifted the burden of proof simply by observing that father had failed or refused to provide any
information about his current circumstances, show any interest in C.G.’s current welfare, or
demonstrate any understanding of her needs or ability to resume parental responsibilities. See In
re B.C., 169 Vt. 1, 14 (1999) (recognizing that the court “did not improperly shift the burden of
proof. . . .[by] noting the absence of any credible evidence that grandmother could assume the
role of parent”). Accordingly, we find no merit to the claim.

       Father next contends the evidence was insufficient to support the court’s findings that
father was not “capable or willing to provide adequate care” for the child, 14 V.S.A.
§ 2664(a)(1), and that returning the child to father was not “likely within a reasonable period of
time.” Id. § 2664(a)(2). As summarized earlier, the court found, and the record showed, that at
the time of the hearing in this matter, father had not seen C.G. for over five years. He had
refused for years to undergo a psychosexual evaluation or to engage in anger management or
other counseling and services as a condition to supervised contact. C.G.’s grandmother testified
without contradiction that, during the prior five years in which she had custody of the child,
father had no contact with the child. Grandmother testified, as well, that C.G. had initially
expressed fear that father would take her away, continued to express anxiety about father, and
did not wish to see him. In his testimony, father maintained that his rights had been denied and
that C.G. had been “coerced,” but otherwise refused to address issues relating to his conduct
                                                2
toward the child. The record thus amply supports the court’s findings that father could not
provide adequate care for the child or resume parental responsibilities within a reasonable time.

        Father next asserts that the trial court improperly took judicial notice of a permanency
plan adopted by the trial court in July 2008 in connection with the first CHINS proceeding
involving C.G. The point of the claim is unclear. Courts generally may take judicial notice of
prior court orders. See In re T.C., 2007 VT 115, ¶ 16, 182 Vt. 467 (“The existence of a prior
order is an appropriate subject of judicial notice.”). Further, father does not identify how he was
prejudiced as a result. See In re R.W., 2011 VT 124, ¶ 17, 191 Vt. 108 (noting that we employ
harmless error standard in juvenile dependency cases, and will reverse a judgment only where
error affects a substantial right of the party). Father challenges none of the court’s findings
concerning the history and background of this case based, presumably, on this and other
disposition orders contained in the case files. Accordingly, we discern no basis to disturb the
judgment on this ground.

        Finally, father contends the court erred in failing to issue an order either granting or
denying visitation with father. In this regard, the court observed that no motion for visitation had
been filed and no evidence had been presented on the question. With the understanding that the
matter would be transferred to the probate division for supervision of the guardianship under 14
V.S.A. § 2664(c), the court provided that “[f]ather may petition for visitation through the Probate
Division.” Father contends that the court lacked the discretion to defer ruling on the issue,
relying on § 2664(a), which provides that the court “shall also issue an order permitting or
denying visitation, contact or information with the parent at the same time the order of
permanent guardianship is issued.” Father notes, as well, that the court provided for visitation
with mother “in the discretion of the permanent guardian.” We do not necessarily agree that the
statute requires a ruling regardless of the absence of a request for visitation or a record adequate
to address the subject. We need not, however, resolve the issue in the absence of any
demonstrated prejudice to father, who remains free to petition for visitation in the probate
division.

       Affirmed.*

                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Geoffrey W. Crawford, Associate Justice




       *
           Father’s motion to strike portions of grandmother’s brief for failure to include
references to the record is denied.
                                             3
