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



                                               ENTRY ORDER

                               SUPREME COURT DOCKET NO. 2011-301

                                          DECEMBER TERM, 2011

     M.M.                                                  }    APPEALED FROM:
                                                           }
                                                           }    Superior Court, Chittenden Unit,
        v.                                                 }    Family Division
                                                           }
     S.L.                                                  }    DOCKET NO. 551-7-09 Cndm

                                                                Trial Judge: Linda Levitt

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

       Mother appeals pro se from an order of the Chittenden Superior court, Family Division,
awarding father sole parental rights and responsibilities for the parties’ child. Mother contends that the
court erroneously: (1) made a number of findings unsupported by the evidence; (2) relied on facts
previously adjudicated; (3) failed to require a substantial change of circumstances as a prerequisite to
modifying parental rights and responsibilities; and (4) failed to acknowledge her custodial role in
determining the child’s best interests. We affirm.

       The record discloses the following material facts. The parties were married in North Carolina in
1997, moved to Vermont in 2001, and divorced in 2004. Under the terms of the divorce decree, they
shared custody of their only child, born in 1998. In 2005, father returned to North Carolina. The parties
agreed that the child would live with father during the school year and spend summers with mother.
Both parties subsequently remarried, but later separated from their new spouses.

        Disputes between the parties resulted in mother’s filing a motion to modify parental rights and
responsibilities in North Carolina in November 2008. A court-ordered evaluation by a social worker
noted that the child had recently been diagnosed by a psychologist as having Attention Deficit
Hyperactivity Disorder (ADHD), that mother disputed the diagnosis and did not agree with father’s
decision to use medications for the condition, and that father was concerned that mother’s new husband
had physically abused the child. Apparently based on father’s plan to return to Vermont and the
agreement of the parties, however, the court issued a temporary order reaffirming the shared custody
arrangement so long as father lived within twenty miles of mother’s home in Hinesburg, Vermont, the
child lived with mother and attended school in Hinesburg, and father had frequent visitation.

        Father thereafter moved to Vermont and the parties shared custody, often exchanging physical
custody every other week, until mother moved to modify custody in March 2010. Following several
hearings, the court deferred ruling on the motion pending an evaluation of the child by the Stern Center.
Conducted in February 2011 when the child was almost thirteen, the Stern report observed that the
parties had different perspectives on several academic, health, and social issues involving the child.
According to the report, the child’s teachers had observed that, although intelligent and creative, he had
significant problems with attention, memory, and work completion. Various tests discussed in the report
tended to support these observations, suggesting a “complex profile” of symptoms involving attention,
mood, executive functioning, and anxiety. The report recommended a further evaluation by a mental
health professional to provide a differential diagnosis and suggestions for necessary interventions. In
this regard, the report noted mother’s continuing reservations about the earlier diagnosis of ADHD and
her tendency to attribute some of the child’s symptoms to his personality, while father viewed them as
resulting from learning difficulties treatable through ADHD medication.

        Following the report, mother renewed the pending motion to modify, and the court held a
hearing in July 2011.∗ Each party appeared pro se and testified extensively in response to questioning
by the court. Mother explained that the shared custody arrangement was no longer working due to the
increasing disruptions caused by moving the child between two homes and the parties’ inability to agree
on fundamental issues, prompting her to seek sole legal and physical rights and responsibilities. She
asserted that her home offered the child the advantages of remaining in the same community where he
currently attended school and had friends. Father also sought sole parental rights and responsibilities,
expressing concern that mother had not attended adequately to issues concerning the child’s learning
difficulties, hygiene, and safety, and stating that he provided the necessary oversight, structure, and
routine.

        At the conclusion of the hearing, the court issued brief findings from the bench. The court found
that both parties were excellent parents, which made the decision a difficult one. Nevertheless, the court
found that father had demonstrated more insight into the needs of the child and was better suited to
attend to those needs, enhance the child’s self-esteem, and ensure that he was organized, prepared for
school, and socially and academically successful. Accordingly, the court awarded father sole legal and
physical parental rights and responsibilities, and granted mother extensive visitation. Mother appealed.

        Mother’s brief raises three distinct claims, as well as several others that were not separately or
expressly captioned. First, she contends that the court’s finding that father would better attend to the
child’s needs was predicated upon an erroneous finding that the child had ADHD or other unmet
learning difficulties. She notes that the Stern report did not contain a diagnosis of ADHD, and contained
a number of findings showing his intellectual strengths. She also contends that there was no evidence of
father’s greater ability to meet the child’s schooling needs. Second, she argues that the court improperly
relied on allegations that had been previously adjudicated. Third, she argues that the court failed to duly
credit her role as primary care provider. Finally, she argues that the court failed to require a substantial
change in circumstances.

       Our review is limited. The trial court enjoys broad discretion in resolving a motion to modify
parental rights and responsibilities. Chickanosky v. Chickanosky, 2011 VT 110, ¶ 14. Because of its
unique position as the trier of fact, the trial court is best positioned to assess the credibility of witnesses
and weigh the evidence, and its findings will be upheld if supported by reasonable and credible
evidence. Id. Assessed in light of these standards, we discern no basis to disturb the court’s findings. A
review of the hearing reveals that the court’s finding that father was better able to attend to the child’s
needs was not based on an express finding that the child had ADHD, but on the totality of the evidence
showing that he had a number of real and substantial learning challenges, including the diagnosis of
ADHD from North Carolina and the Stern report noting “concerns with [the child’s] attention, executive

       ∗
           Mother has submitted a DVD recording, rather than a transcript, of the July 2011 hearing.

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functioning, mood, behavior and . . . anxiety,” all of which suggested a possibility of ADHD. The
court’s finding that father was better able to attend to these needs was also reasonably supported by the
Stern report indicating father’s greater sensitivity to the test results, and father’s testimony explaining
the steps he had taken to keep the child organized both in and out of school.

        Mother next contends the court improperly relied on allegations of physical abuse by the child’s
stepfather and mother’s “inappropriate blocking of medical treatment,” asserting that both allegations
had been previously determined to be unfounded by the North Carolina court. Nothing in the court’s
decision here, however, indicates that it relied on either of these allegations in its decision. The court
expressly noted that the allegation of physical abuse had not been pursued or substantiated, and there
was no evidence that mother had actually impeded the use of medication for ADHD, only that she
questioned the diagnosis. Accordingly, we find no error.

        Mother further contends that the court improperly failed to find a real, substantial and
unanticipated change of circumstances, improperly shifted the burden of proof on the issue to mother,
and failed to acknowledge her “custodial role” in assessing the best interests of the child. Mother
overlooks the fact that she filed the motion to modify and testified at the hearing to the necessary change
of circumstances in stating that shared custody was no longer working due to the parties’ inability to
agree on significant issues. Father agreed, and the court so found. This was sufficient to meet the
requirement. See Maurer v. Maurer, 2005 VT 26, ¶ 8 (mem.) (finding that parties’ inability to agree on
transportation and counseling for child was sufficient change of circumstances to reconsider shared
custody). As for her custodial role, the court expressly acknowledged that both parties had been
wonderful parents, but concluded that on balance father was better able to meet the child’s needs. We
thus find no error, and no basis to disturb the judgment.

       Affirmed.

                                                    BY THE COURT:


                                                    _______________________________________
                                                    Paul L. Reiber, Chief Justice

                                                    _______________________________________
                                                    Brian L. Burgess, Associate Justice

                                                    _______________________________________
                                                    Beth Robinson, Associate Justice




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