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




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-225

                                      DECEMBER TERM, 2015

 Jason Fisher                                          }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Caledonia Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 Valerie Coolidge                                      }    DOCKET NO. 255-10-03 Cadm

                                                            Trial Judge: Robert R. Bent

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

       Mother appeals pro se from a superior court order granting father’s motion to modify
parental rights and responsibilities. She contends the court committed a number of errors in
changing custody of the parties’ minor child. We affirm.

        The parties are the parents of M.C., who was twelve years old at the time of the hearing
in this matter. In May 2014, father moved to modify parental rights and responsibilities by
transferring custody from mother to father. At the time, M.C. lived in Montpelier with mother
and mother’s three other children: two boys who were sixteen and seven years old, and a girl
who was two years old. The children had different fathers from M.C. Father lived in Groton
with his long-term partner and had parent-child contact with M.C. every Tuesday evening and
every other weekend from Friday to Monday. Father also had weekend visits with a nine-year
old daughter by a different mother.1

        Father’s modification motion alleged that mother had been hospitalized on a number of
occasions within the last several months for mental health issues, the latest occurring two weeks
earlier when she locked herself in a bathroom and cut herself with a razor. Following a number
of status conferences, father filed an amended motion in late December 2014, and the court set a
hearing for mid-January 2015. The amended motion listed four areas of concern to father:
mother’s mental health status; M.C.’s school attendance; incidents at mother’s home to which
the police had responded; and mother’s interest in the use of medications for M.C. before
looking at other factors affecting the child’s mental health.



         1
           The trial court mistakenly referred to father’s nine-year-old daughter as his current
partner’s daughter.
         At the initial hearing in January 2015, both parents testified about their respective home
situations and concerns about M.C. Father introduced evidence of M.C.’s numerous school
absences and failure to keep up with her school work. He also introduced, without objection,
Montpelier police records showing a number of police visits to mother’s home during the
preceding several months. Mother acknowledged the incident in which she had locked herself in
the bathroom and cut herself with a razor. She recalled that M.C. and her older brother were
home at the time, that her son broke down the door, and that M.C. observed mother bleeding.
She attributed the incident to depression, which she blamed on a vitamin deficiency. She
testified that she was hospitalized again, shortly thereafter, and that M.C. stayed with father
during this time. She acknowledged that M.C., who had been seeing a therapist for the last five
years, subsequently showed more signs of depression, missed additional days of school, failed to
attend “homework club,” slept poorly, complained of stomach problems, and suffered panic
attacks and other anxieties. She conceded that M.C. was struggling, and that her home situation
with three other children, including her younger son who is autistic, was a little crazy.

       Father testified that he is a self-employed carpenter with a flexible work schedule. He
was concerned that M.C.’s recent struggles were related, in part, to stresses relating to mother
and mother’s household. He was also concerned about M.C.’s physical safety, stating that
M.C.’s younger brother was often violent and out of control, that father had seen him strike
M.C., and that M.C. had come to father’s house with bruises that she attributed to being hit by
the younger brother.

       At the conclusion of the hearing, the trial court found that father had shown a real,
substantial and unanticipated change of circumstances based on evidence of mother’s struggles
with depression and managing the household, and evidence of M.C.’s declining mental health.
The court scheduled a second hearing day to afford the parties an opportunity to present
additional evidence.

         At the hearing in February 2015, father again testified and also called two additional
witnesses—his partner, and the child’s mentor with the Girls and Boys Club.2 Father’s partner
testified that she gets along well with M.C. during visits, and viewed herself as playing a
motherly role in the child’s life. She noted that M.C. liked to stay up late, but would go to bed
when told to do so, and that she shared a bedroom with father’s other daughter during visits.
Father’s partner expressed concern about M.C.’s general well-being, appearance, and hygiene
when she came for visits. M.C.’s mentor also testified that she had concerns about changes in
M.C.’s behavior, observing that she often appeared to be sad and overwhelmed by school. She
also expressed concern about the home situation with M.C.’s younger brother, noting that it
appeared to trouble M.C. Father reiterated his concerns about mother’s periodic depressions,
M.C.’s chaotic home life, and M.C.’s struggles with her mood, homework, and hygiene.

       Mother called her older son as a witness. He testified that his relationship with M.C. was
generally good, that M.C.’s relationship with her younger brother was antagonistic but nothing

       2
          Father had arranged for the child’s therapist to testify by telephone, but the therapist
did not answer when called.


                                                2
worse, and that M.C. was loving and protective of her younger sister. He acknowledged that the
household was more chaotic than most. Mother testified about her sporadic relationship with the
father of M.C.’s younger sister, acknowledging that she had recently asked him to move out
because of alcohol problems. She acknowledged that M.C. remained troubled, and that her
pediatrician believed that she was depressed. Mother argued that M.C. was close to her siblings
and friends in the community, and that it would not be in M.C.’s best interests to uproot her to
another household in a different community.

        The court issued a written ruling in May 2015. After reviewing the record evidence
summarized above, the court reaffirmed its earlier finding that it was “more likely than not that
[M.C.’s] significant decline in mental health is strongly affected by her household environment,
and that such marked decline comprises a real, substantial and unanticipated change in
circumstances.” Based on the evidence of “household disorganization, numerous calls to the
police, and . . . . chaos,” the court concluded that mother lacked the ability “to meet [M.C.’s]
present developmental needs.” While recognizing mother’s historic role as M.C.’s primary care
provider, and conceding that it was a close case, the court concluded that a change of custody
would alleviate M.C.’s “ clear maladjustment” to her current housing situation, and that father
was “better positioned to provide a safe environment” for M.C. and the opportunity to recover
her equilibrium. The court thus awarded father sole physical and legal parental rights and
responsibilities, and provided for visitation with mother every other weekend. The court also
directed father to ensure the completion of any educational or psychological evaluations M.C.
was currently undergoing. This pro se appeal by mother followed.

        Our review of a trial court’s decision to modify parental rights and responsibilities is
generally deferential. We assess the trial court’s findings “in the light most favorable to the
prevailing party below, disregarding the effect of any modifying evidence, and we will not set
aside the findings unless they are clearly erroneous.” Spaulding v. Butler, 172 Vt. 467, 475
(2001) (quotation omitted). Accordingly, we will uphold the court’s factual findings “if
supported by credible evidence, and the court’s conclusions will stand if the factual findings
support them.” Id. (quotation omitted). In making the necessary threshold finding of changed
circumstances, the court’s “determination is a matter of discretion,” which we will not disturb
unless made “for reasons untenable.” Meyer v. Meyer, 173 Vt. 195, 197 (2001). Once the court
has found the requisite change of circumstances, it must determine what is in the best interests of
the child, a decision similarly committed to the trial court’s sound discretion. See Spaulding,
172 Vt. at 475 (“Trial courts have broad discretion in determining the best interests of the
child.”).

       Closely parsed, mother’s brief raises the following claims. First, she contends the trial
court abused its discretion by admitting a number of police reports under the “public records”
exception to the hearsay rule. V.R.E. 803(8). She claims that they contain hearsay within
hearsay, and otherwise “indicate a lack of trustworthiness” under V.R.E. 803(8)(B)(iv).
Although mother initially questioned the validity of the records, she did not object to their
admission on hearsay grounds. She has therefore waived this argument on appeal. See Jordan v.
Nissan N. Am., Inc., 2004 VT 27, ¶ 10 (holding party was precluded on appeal from objecting to
admission of evidence on hearsay grounds where below party objected on different ground of


                                                3
statutory compliance); State v. Faham, 2011 VT 55, ¶ 24 (mem) (holding defendant was
precluded from raising on appeal a different theory regarding the admissibility of evidence than
what was presented to the trial court). See also V.R.E. 103(a)(1) (error may not be predicated
upon admission of evidence unless “a timely objection or motion to strike appears of record”).
Furthermore, we note that the trial court relied on the records largely to show the substantial
number of police calls relating to the family as indicative of “the chaos in the household” rather
than for the truth of their specific contents. See V.R.E. 801(c) (defining hearsay as a statement
“offered in evidence to prove the truth of the matter asserted”). Accordingly, we find no basis to
disturb the judgment based on the alleged evidentiary error.

        Mother next contends the trial court made a number of erroneous factual findings. She
asserts that the court erred in characterizing the procedural history of the matter as including
“multiple contested hearings.” Mother does not assert, however, nor does the record show, that
the alleged mischaracterization had any prejudicial effect. See Rogers v. Parrish, 2007 VT 35, ¶
21, 181 Vt. 485 (“Erroneous or unsupported findings do not require reversal . . . unless they are
shown to have been prejudicial.”).

        Mother also takes issue with the court’s finding: “[Father’s partner] has a good
relationship with [M.C.] and has been talking to her, along with [partner’s] daughter about ‘girl’
things, including changes brought on by puberty.” Mother notes that the child is not father’s
partner’s daughter, but rather father’s daughter. Again, however, the court’s finding was focused
on father’s partner’s positive relationship with both girls; the factual error was neither substantial
nor prejudicial. Under a separate heading, mother also contends the trial court failed to
substantiate its finding concerning the “lack of household organization.” Mother and her older
son, however, characterized the household circumstances as crazy or chaotic, and the number of
police visits—as the court noted—also supported the finding.

         Mother further disputes the court’s decision to “credit [father’s partner’s] testimony that
[M.C.] at times expresses anxiety regarding her safety around” her younger brother. The trial
court is in the best position to observe the witnesses and weigh their credibility, and we will
generally not disturb its findings in this regard unless clearly erroneous. Begins v. Begins, 168
Vt. 298, 301 (1998). Several witnesses, including father’s partner, father, and M.C.’s mentor, all
testified to either observing M.C.’s younger brother strike her or to hearing M.C. express
concerns about her younger brother. We thus find no basis to disturb the court’s finding.

         Mother additionally questions the court’s finding that mother was “grateful” for father’s
partner’s assistance in talking with M.C. about certain matters related to puberty, and that mother
testified that “doing these types of things was not part of her mothering technique.” The court’s
findings were a reasonably fair characterization of mother’s acknowledged testimony that
father’s partner was “great” with M.C. and “has a lot of cool things to teach M.C. about makeup
. . . because I’m not that kind of mom . . . .” We find no error.

       Mother next contends the trial court improperly denied her request for a continuance.
The record discloses that, at the start of the first day of the hearing in mid-January 2015, mother
objected to the hearing, because she was not prepared to address the additional concerns set forth


                                                  4
in father’s amended modification motion, filed in late December 2014. The court indicated that
it would afford the parties another full hearing day to submit additional evidence, set the matter
for a continued hearing five weeks later, and proceed with the scheduled hearing. Thus, the
record does not show, nor does mother assert, that she was denied the opportunity to submit
evidence, or that she was prejudiced in any way by the court’s ruling.

         Mother next contends the court failed to “show that it thoroughly reviewed the record in
determining the best interest of the child” by showing a disregard for the age and developmental
stage of M.C., “overlook[ing]” father’s testimony that he is not comfortable discussing certain
matters relating to puberty with M.C., failing to accord sufficient weight to father’s opposition to
M.C. obtaining medical evaluations and help, and failing to consider the impact of a change of
custody on M.C.’s relationships with her siblings, friends, and community. The court addressed
many of these matters directly or indirectly. The court noted father’s concern that M.C. not be
“medicated” until a full evaluation was completed and environmental factors were considered,
and expressly directed father to ensure that all medical evaluations be completed. The court also
recognized mother’s history as M.C.’s primary care provider, and the testimony concerning
M.C.’s close relationship with her younger sister. While finding that it was a close case, the
court ultimately concluded that other concerns outweighed these factors, including most
particularly mother’s ability to address M.C.’s declining mental health. We find no basis to
conclude that the court, in weighing these competing considerations, abused or failed to exercise
its discretion.

       Mother further asserts that the court erred in dismissing the guardian ad litem for M.C. at
the outset of the first of the two hearing days.3 The trial court’s decision whether to appoint a
guardian ad litem in a custody case is a discretionary one. See 15 V.S.A. § 669 (“In all cases
involving parental rights and responsibilities the court may appoint a guardian ad litem to
represent the best interests of the child.”). The purpose of a guardian ad litem is to help the child
in understanding the process and to provide the parties and their attorneys with information that
can assist the parties in reaching an outcome that is in the best interest of the child. Vermont
Family Proceedings Rule 7(b). In the context of an evidentiary hearing such as this one, the
guardian ad litem may not speak on the record unless an attorney for the child has been
appointed and either the parties agree, or the court requests, that the guardian ad litem speak.
V.R.F.P. 7(f)(2). In this case, the court had not appointed an attorney for the child. Even if the
guardian ad litem had been present through the hearing, he would not have been authorized to
speak on the record. Under these circumstances, it is not clear from mother’s brief what role she
believes the guardian ad litem would have played had the court not dismissed him, or how his
absence prejudiced her. We conclude that that the trial court did not abuse its discretion in
dismissing the guardian ad litem.

        Finally, mother contends that the evidence failed to support the court’s finding that a
custodial change would benefit M.C., asserting that the court assumed M.C.’s problems were
“situational in nature” rather than—as “medical research” suggests—related to her “bio-

       3
          We have been unable to locate the trial court’s exchange with the guardian ad litem in
the record. For the purposes of our analysis, we accept mother’s description of the record.


                                                 5
psychology and . . . pubescent hormonal changes.” Mother offered no medical evidence at the
hearing, however, and her references to medical articles are outside the record and may not be
considered. State v. Brown, 165 Vt. 79, 82 (1996); V.R.A.P. 10(a). The court’s finding that a
custodial change would benefit M.C. was reasonably supported by the circumstantial evidence
suggesting a correlation between M.C.’s decline in mental health, mother’s depression and the
circumstances surrounding mother’s hospitalizations, and mother’s chaotic household.
Accordingly, we find no error, and no basis to disturb the judgment.

       Affirmed.

                                             BY THE COURT:


                                             _______________________________________
                                             John A. Dooley, Associate Justice,

                                             _______________________________________
                                             Beth Robinson, Associate Justice

                                             _______________________________________
                                             Harold E. Eaton, Jr., Associate Justice




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