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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-444

                                          JULY TERM, 2015

 In re Guardianships of D.B., T.B., and B.B.           }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windsor Unit,
                                                       }    Civil Division
                                                       }
                                                       }    DOCKET NO. 52/53/54-1-14 Wrpr

                                                            Probate Judge: Joanne M. Ertel

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

       Parents appeal an order of the probate division granting grandparents’ petition to be
appointed custodial guardians of minors D.B., T.B., and B.B. We affirm.

        This case began in the family division. In December 2009, the State filed a petition
alleging that parents’ three children, who were then age four, two and one, were in need of care
or supervision (CHINS) for lack of proper parental care. Pursuant to an emergency-care order,
the family division granted custody to the Department for Children and Families (DCF). The
children were initially placed in foster care, and then were placed with grandparents in April
2010 under a conditional-care order. In August 2011, the family division issued an order
vacating the conditional-care order with the agreement of all parties, and stating: “Legal
guardianship with grandparents.” In June 2013, parents filed a motion requesting custody of the
three children, and effectively seeking to terminate the guardianship with grandparents.
Following a hearing, the family division issued an order in December 2013. The court continued
custody of the children with grandparents, but questioned whether a legal guardianship had been
created since no action had been taken in the probate division.1

        A proceeding to have grandparents appointed guardians for the minor children was
commenced in the probate division. Following a hearing, the court found the following by clear-
and-convincing evidence. The children lived with parents in grandparents’ home from 2007 to
2009. During that time, parents fought verbally and physically in front of the children. Mother
verbally abused the children, calling them foul and vulgar names. Mother also slapped one child
and beat another on the chest. Mother inappropriately touched the children, pulling her son’s
penis foreskin and putting her finger in the children’s anuses to clean them to the point where the
children would scream. Parents left grandparents’ home with the children in October 2009 after
        1
            At the time, the probate division had sole jurisdiction over minor guardianship
proceedings. 14 V.S.A. § 2645. In 2014, the statute was amended. 2013, No. 170 (Adj. Sess.),
§ 6 (repealing 14 V.S.A. § 2645). Under the amended statute, the probate division has exclusive
jurisdiction over proceedings involving guardianship of minors, except that the proceeding can
be transferred to the family division under certain circumstances. Id. § 1, codified at 14 V.S.A.
§ 2624 (allowing transfer of minor guardianship to family division).
mother was charged with assaulting father’s brother’s girlfriend, who also lived in the home.
Mother was eventually convicted of domestic assault.

       After the CHINS petition was filed in 2009, DCF attempted to work with parents, but
parents made very little improvement. Mother minimized her domestic violence, was explosive
and would not work with a parent educator. Father was more cooperative, but also did not
progress in his parenting skills. Both parents used extremely foul language.

       Parents failed to cooperate with the agency providing supervised visitation, and last had
contact with the children in January 2014. The children have adjusted well to living with their
grandparents, who have a warm and loving relationship with the children. Each child has an
individualized education plan at school. Grandparents read with them, and help them with
homework.

        In determining whether these findings were sufficient to support a guardianship, the court
acknowledged that the relevant statute had been amended after the petition was filed but before
the final hearing. Under the prior statute, a minor guardianship could be created if the parent
was “incompetent or unsuitable to have the custody of the person of the minor.” 14 V.S.A.
§ 2645(2), repealed by 2013, No. 170 (Adj. Sess.), § 6, effective September 1, 2014. This Court
interpreted the language “unsuitable” in the statute to require a showing that “the child has been
abandoned or abused by the parent, or that the child is without proper parental care or
subsistence, education, medical, or other care necessary for his well-being before a parent’s
rights can be defeated.” Rutherford v. Best, 139 Vt. 56, 61 (1980) (citation omitted). This is the
same standard for adjudicating a child as CHINS. The amended statute essentially incorporates
this standard, defining a “child in need of guardianship” as one who, among other things, is
abandoned or abused or lacks “proper parental care, subsistence, education, medical, or other
care necessary of the child’s well-being.” 14 V.S.A. § 2622(2)(B)(i), (ii).

       The court concluded that under either standard, grandparents had met their burden of
demonstrating by clear and convincing evidence that the parents are unsuitable, and that a
guardianship was in the children’s best interests. Parents appeal.

        We need not reach the question of whether to apply the amended statute, because we
agree with the probate court that under either standard the outcome is the same. The new statute
essentially adopted the existing legal standard, specifying that, like in a CHINS proceeding, a
child is in need of guardianship if, among other things, the child has been abused or is “without
proper parental care, subsistence, education, medical, or other care necessary for the child’s well-
being.” Id.2

        Parents’ first claim appears to be that some of the court’s findings are not supported. On
appeal, we defer to the findings of the factfinder and will not reverse unless those findings are
clearly erroneous. In re K.M.M., 2011 VT 30, ¶ 14, 189 Vt. 372. Even if contrary evidence
exists, we uphold the trial court’s findings “if they are supported by credible evidence.” Id.
Insofar as parents argue that witnesses were lying and therefore the findings are incorrect, the
credibility of the witnesses and weight of the evidence is to be determined by the trial court and
we will not reexamine the evidence on appeal. See Kanaan v. Kanaan, 163 Vt. 402, 405 (1995).

       2
          We note that the procedural aspects of the new statute are being applied to this appeal
insofar as this direct appeal from the probate division is a new procedure adopted by the
amended statute. See 14 V.S.A. § 2633 (granting Supreme Court jurisdiction over probate orders
issued in guardianship proceedings).
                                               2
        Further, some of parents’ arguments relate to the CHINS proceeding that occurred in the
family division. The CHINS determination is a final order, and the procedures in the family
division are not part of this appeal. Therefore, we do not address these issues.

        To the extent we can discern parents’ other arguments, we address them. Parents argue
that there was no substantiation of abuse based on mother’s treatment of the children and imply
that therefore testimony about abuse by mother should not have been considered by the probate
court. The probate court did not err in considering mother’s actions. Whether these actions were
abuse that warranted substantiation is a separate question from whether mother’s actions
exhibited lack of proper parental care. See In re M.K., 2015 VT 8, ¶ 11 (declining to adopt in
CHINS context definition of abuse in statute relating to substantiations).

       Parents also appear to argue that the court erred in finding that parents failed to make
arrangements for visitation with the third-party organization because it was due to matters
beyond parents’ control. The court considered all of the evidence offered concerning the
arrangement of visitation and concluded that the visits ended “because parents refused intake.”
The record supports the court’s finding. The organization director testified that she spoke with
parents on the phone to arrange an intake, but they refused to set up the appointment, and did not
follow through. Therefore, the finding was supported and there was no error.

        Parents also contend that they have adequate parenting skills and this is demonstrated by
the fact that they are currently parenting their youngest child. The court did not err in concluding
that the fact parents are parenting one young child is not particularly probative of whether their
older children are in need of a guardian. The facts related to the three older children are different
from those related to the youngest child. All the older children have special needs and have been
victims of and witnesses to domestic violence. The court found that parents lack the necessary
parental skills to care for these children and have “demonstrated unwillingness” to learn new
skills. They are verbally abusive, use foul language, and show little insight into the impact of
how their verbal abuse and the domestic violence in the home affected the children. Further,
parents do not cooperate with social services, and, at the time of the final hearing in September
2014, had not seen the children since January 2014. In sum, these findings support the court’s
decision that the children were in need of a guardian due to lack of proper parental care, and
therefore there are no grounds to disturb the guardianship order.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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