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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-080

                                       OCTOBER TERM, 2014

 Kayla L. Herrick                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windsor Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 Edmund Vigneault                                      }    DOCKET NO. 48-2-11 Wrdm

                                                            Trial Judge: Harold E. Eaton, Jr.

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

        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.

       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.

        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.

        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.
        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.

        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.

          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.

        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 court provided a detailed schedule of unsupervised parent–child
contact with mother.1 This appeal by mother followed.

        Mother contends the trial court erred in excluding a report concerning her medical history
from Dartmouth Hitchcock. Mother attempted to admit the document during her cross-
examination of father. Father objected on the ground that he had no personal knowledge of the
records, and also that it was hearsay. The court sustained the objection and explained to mother,
“You can testify about it, but he can’t testify, okay?” Father subsequently answered several
questions about mother’s mental-health history about which he had personal knowledge. Mother
did not attempt to introduce the records during her own case. Given these circumstances, the
trial court’s ruling was not error. There was no foundation to show that father had direct

       1
           The record shows that, in June 2014, while this appeal was pending, the trial court
issued an order finding that mother had satisfied the conditions for unsupervised contact, and
authorized such contact under the terms specified in its decision.
                                                2
personal knowledge of the contents of mother’s medical records, and the records were subject to
a hearsay challenge. Even if the trial court’s ruling had been error, mother has not alleged or
demonstrated that she was prejudiced by the ruling. See Griffis v. Cedar Hill Health Care Corp.,
2008 VT 125, ¶ 19, 185 Vt. 74 (noting that even where evidence is erroneously excluded, its
exclusion is not grounds for reversal absent showing “that its exclusion likely affected the
outcome of the case”).

         Mother also claims that she was denied an “opportunity to speak on her own behalf.”
The record shows that mother called two witnesses, her sister and mother. When asked by the
trial court if she had “any other witnesses you’d like to call,” mother responded, “I do not.”
When further asked “Is there additional testimony that you’d like to give?” she answered “No, I
do not.” Thus, the record does not support mother’s claim that she was denied an opportunity to
testify.

        Mother also asserts that she was not afforded an opportunity to admit into evidence a no-
trespass order from several years earlier and a joint-custody agreement proposed by father. The
record again does not reveal any proffer or attempt to admit the documents in question. See
V.R.E. 103(a). Accordingly, there is no basis for a finding of error.

        Mother further asserts that the trial court ignored key evidence from West Central Mental
Health Services. Although the court admitted mother’s counseling records during the hearing,
mother claimed that these records were incomplete, and in particular did not show all of her
therapy appointments. One week after the close of evidence, mother submitted a document to
the court that appeared to be one-page printout listing ten therapy appointments. Mother
contends the trial court erred in ignoring the document, particularly after stating at the conclusion
of the hearing that it would “look forward to whatever you want to provide us.” The record
shows, however, that the court considered the evidence to be closed and was simply inviting the
parties to submit proposed findings and conclusions, not additional evidence.

        Furthermore, while the trial court has “broad discretion” to permit additional evidence to
be offered after the close of evidence, In re Bjerke Zoning Permit Denial, 2014 VT 13, ¶ 16, ___
Vt. ___, it also has broad authority to control the introduction and order of evidence. Bevins v.
King, 147 Vt. 203, 207 (1986). Whether the trial court here should have re-opened the evidence
on its own motion to consider mother’s late submission or was correct in ignoring it, however, is
largely immaterial. The court’s decision on the motion was based primarily on mother’s failure
to establish through the opinion of a qualified mental-health professional that she had reached a
level of emotional stability to safely care for the children, and not on the specific number of
counseling sessions that she had attended. Accordingly, even if the court erred in failing to
reopen the evidence to consider mother’s late submission, we are satisfied that it did not
prejudicially affect the result. Griffis, 2008 VT 125, ¶ 19.

        Mother next asserts that the trial court failed to “take[] into account” the testimony of her
mother and sister concerning the positive interactions between mother and the children during
supervised visits. On the contrary, the court acknowledged the testimony, finding that “[m]other
has done well with the children when she has had them either with her sister or with her parents,”
but further found that mother had not taken advantage of other opportunities to call or visit the
children. Mother similarly claims that the trial court failed to properly consider her relationship
with the children prior to the October 2013 incident. The court expressly recognized, however,
that mother had a close and loving relationship with the children developed over years; its

                                                 3
decision was based on overarching considerations concerning the children’s need for safety and
stability.

        Mother also contends the trial court’s decision to allow her an unsupervised visit with the
children after the hearing was inconsistent with and undermines its conclusion that she was not
able to safely parent the children.2 The record discloses that, at the conclusion of the hearing,
mother asked if she could take the children out to dinner that evening without supervision to
celebrate her birthday. The trial court granted the request “for today only” with careful
limitations, requiring that mother pick up the children at their after-school program and that
father retrieve them directly from the restaurant. The court explained, “I don't know where I'm
going to go once I've read all of these exhibits and considered the pleading papers that are going to be
submitted. But I am confident that the children will be safe in your care today.” The court’s finding
that the children would be safe with mother the evening of the hearing was limited, and is not
inconsistent with its ultimate award of parental rights and responsibilities to father .

       Finally, mother claims that the court overlooked two letters from the discharging
physician at Dartmouth Hitchcock stating that mother was not a danger, and evidence that father
improperly removed the younger child from daycare, attempted to alienate the children from
mother, and abused family pets. The purported evidence does not appear in the record, which
does not support the claims. Accordingly, we find no basis to disturb the judgment.

       Affirmed.



                                                  BY THE COURT:


                                                  _______________________________________
                                                  Paul L. Reiber, Chief Justice

                                                  _______________________________________
                                                  John A. Dooley, Associate Justice

                                                  _______________________________________
                                                  Beth Robinson, Associate Justice




       2
         Because the trial court has subsequently eliminated the requirement that visitation be
supervised, the argument that its requirement for supervised visitation is inconsistent with the
court’s grant of mother’s request for unsupervised time with the children the evening of the
hearing is likely moot. We address mother’s argument here because she challenges not only the
court’s order for supervised contact, but also its award of physical and legal parental rights and
responsibilities to father.
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