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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-046

                                          MAY TERM, 2013

 In re B.P. and K.P., Juveniles                        }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. F247/248-8-10 Cnjv

                                                            Trial Judge: Alison S. Arms

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

        Father appeals an order of the superior court, family division, terminating his parental
rights with respect to his two children, K.P. and B.P. We affirm.

        The facts in this case as found by the trial court are undisputed on appeal. K.P. and B.P.
were born in December 2008 and April 2010, respectively. The Department For Children and
Families (DCF) became involved with the family in June 2010 upon learning that K.P. was
malnourished and neglected, that the children’s mother had serious mental health issues
interfering with her ability to care for the children, and that between 2003 and 2006 father had
pled guilty to domestic assault on two occasions and had been the subject of several
substantiated reports of physical, and in one case sexual, abuse. That same month, the children’s
maternal grandmother offered to take the children, and the parents agreed. In early August 2010,
DCF filed a petition alleging that the children were in need of care and supervision (CHINS).
Following an Emergency Care Hearing, the court transferred custody of the children to DCF
with the understanding that the children’s placement with the grandmother would continue. In
September 2010, the court issued a CHINS order based on the parents’ stipulation that they were
unable to meet the children’s health and hygienic needs at that time, and neither parent was able
to care for both children at once.

         In October 2010, DCF filed a disposition report setting forth concurrent goals of
reunification and adoption. In November 2010, the court approved a modified case plan
providing services to the parents, including visitation, and granting the maternal grandmother
temporary custody of both children. In May 2011, the court granted DCF’s emergency motion to
suspend father’s visits because of concerns regarding his behavior toward the mother and
grandmother. That same month, father failed to appear at a post-dispositional review hearing,
and mother moved into a shelter for victims of domestic violence upon obtaining a temporary
relief-from-abuse order against father. Shortly thereafter, father moved to Arkansas.
        In September 2011, the children’s attorney filed petitions to establish a permanent
guardianship for the children with the maternal grandmother, but two months later the attorney
stated his intent to withdraw the petitions and instead file petitions seeking termination of
parental rights (TPR) as to both children. The grandmother was interested in adopting the
children, and mother indicated that she would not oppose the TPR petitions, which were filed in
February 2012. By the time of the September 2012 hearing on the petition to terminate father’s
parental rights, father had had no contact with the two young children since May 2011.
Following the TPR hearing, the court granted the petitions, concluding that father had not made
sufficient progress towards reunification, had “essentially abandoned” the children, and would
not be able to resume his parental duties within a reasonable period of time from the children’s
perspective.

        On appeal, father does not dispute any of the court’s findings or conclusions, but rather
contends that the court committed plain error by allowing as testimony statements by the
children’s guardian ad litem (GAL) that was based on her observations outside the record, in
violation of Vermont Rule of Family Procedure 6(e). We find no error requiring reversal of the
court’s TPR decision.

       At the conclusion of the TPR hearing, DCF’s attorney reminded the court that it had not
yet asked the children’s GAL if she had any opinion to offer. The court then asked the GAL if
she had an opinion “regarding what is in the best interest of the children based upon the
testimony that [she had] heard in Court today.” She responded as follows:

                 My observation is that it is in the best interest of these children to
               remain with [the grandmother]. I think they are doing well there.
               When I visit, they seem happy and active, engaged with [the
               grandmother], and I think the fact that it’s been so long since
               they’ve seen their father that it would be difficult to make up the
               time.

               ....

               . . . I think they’re quite attached to [the grandmother]. As far as I
               know, they call her Grandma and call [the mother] Mom, but they
               see Mom regularly, also, so that is a home environment that’s now
               well-established and positive, and I think it would not be in the
               best interest of the children to remove them from that at this point
               and take them to an environment which is totally unknown to
               them.

Father did not object to this statement at the time, and did not move to strike it from the record.

        Rule 6(e)(3) of the Vermont Rules of Family Procedure provides, in relevant part, “that
the guardian ad litem may, at any phase of the proceeding, state his or her position or opinion
and the reasons thereof, which reasons shall be based upon the evidence which is in the record.”
In a similar vein, Rule 6(e)(4) provides that “a guardian ad litem may be called as a witness only

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when that person’s testimony would be directly probative of the child’s best interest, and no
other persons could be employed or subpoenaed to testify on the same subject matter.” The
Reporter’s Notes to Rule 6 state that these strictures are meant to assure that the trial court does
not base its decision on factual allegations unsupported by the evidence admitted at trial.

        According to father, by allowing the GAL to included references to her own experiences
with the family outside of the courtroom in stating her opinion, the court committed plain error,
in violation of Rule 6. Father contends that the error cannot be considered harmless, and
therefore the TPR order must be reversed, because one of the best-interests factors is the
relationship of the children with the foster family. See 33 V.S.A. § 5114(a)(1). The GAL’s
statement about the children’s adjustment to their grandmother’s home, the argument goes, likely
influenced the court’s findings that the children had a strong relationship with their grandmother
because, in contrast to more interested witnesses, GALs in general are “cloaked with neutrality.”

         Father’s arguments are unavailing. First, the trial court’s opinion does not support
father’s suggestion that the court considered the GAL’s statements to be testimony or evidence.
In its findings and conclusions, the trial court specifically identified the three witnesses on whose
testimony the court was relying: the DCF case worker, father, and the grandmother. The GAL
was not sworn as a witness, and the court made no reference to the GAL’s statement in the
context of the court’s findings. We cannot infer based on this record that the court improperly
considered the GAL’s passing statement as evidence. Cf. Gilbert v. Gilbert, 163 Vt. 549
(applying rule very similar to Rule 6 and reversing trial court’s award of parental rights and
responsibilities where court made findings based on report from GAL that included matters not
in evidence, and report played significant role in custody hearing).

         Second, the fact that the children were doing well in their grandmother’s custody was
undisputed and supported by other evidence in the record. In its findings, the court referred to
three prior occasions during the CHINS proceedings when the court noted that the children were
doing well in the grandmother’s custody. Moreover, at the TPR hearing, a DCF social worker
testified that from her observations the children were doing “great” in the grandmother’s care.
Father did not suggest otherwise in his testimony. In short, to the extent that the GAL’s
comments were based on her own observations, they were essentially consistent with the
uncontradicted evidence presented at the TPR hearing. This fact further undermines father’s
suggestion that we should infer that the trial court considered the statements as evidence in
violation of the applicable rule.

        Finally, the GAL’s comments did not relate to the primary bases underlying the court’s
TPR decision. The court’s TPR decision was based upon its conclusions, which father does not
challenge on appeal, that father had done little to address the crucial issues that resulted in the
children being removed from his and the mother’s custody more than two years earlier, had
essentially abandoned the children, had not played a constructive role in the children’s lives, and
would not be able to resume his parental duties within a reasonable period of time. These
conclusions alone support the court’s TPR decision, even setting aside the GAL’s observations
that the children were quite attached to their grandmother and were doing well in her custody. In
this case, the record overwhelmingly supports the trial court’s conclusion that father will be
unable to resume his parental duties within a reasonable period of time from the perspective of

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the children. For this reason, even if the court had improperly treated the GAL’s comments as
evidence, that would not amount to plain error requiring reversal of the court’s TPR decision.

       Affirmed.

                                             BY THE COURT:


                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice

                                             _______________________________________
                                             Beth Robinson, Associate Justice




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