Four Prior Days of Evidentiary Hearings is Enough
In In re A.M., 2015 VT 109 (August 28, 2015), the Vermont Supreme Court upheld a disposition order continuing the Department of Children and Families’ legal custody of a minor.
Issue: Mother appealed a disposition order that continued DCF’s legal custody of her child, arguing that: 1) the family court should not have taken judicial notice of prior findings concerning the maternal grandmother’s unsuitability to provide even temporary care for the child; 2) the plan should have included a third concurrent goal for reunification with the maternal grandmother; and 3) that the disposition order was unsupported by any findings.
Holding: The Court held that the lower court had the discretion to determine whether to allow new evidence of a third party’s suitability as a caregiver, especially in light of the four days of evidence presented on this topic two months earlier and the sixteen month delay in creating a disposition plan. Therefore, mother’s rights were not violated. Although mother waived the argument by failing to raise it below, the Court held that the lower court may take judicial notice of adjudicated facts and findings made earlier in the same case on grandmother’s suitability as a caregiver. Further, it may consider the judicially noticed findings, in combination with new evidence, if any, in reaching its decision, as long as the same burden of proof is applied in the subsequent proceeding. It found that, even if this were not the case, there was no prejudice to mother in refusing to allow additional evidence since she could not identify any new evidence that would call the findings into doubt. Finally, it held that there was sufficient findings for the disposition order, as there were written findings and conclusions based on factual stipulations and representations made by the parties. The parties’ agreement with the disposition plan, with exception to the grandmother issue, was essentially a stipulation to the facts demonstrating their unfitness.
Concurrence: Dooley, J, issued a concurrence, disagreeing with the dicta regarding judicial notice. He analyzed Vermont Rule of Evidence 201 to critique the majority’s broad and discretionary application of judicial notice. He argued that the judicially noticed facts in this case were hotly disputed, which does not fit the requirements of Rule 201(b). After analyzing whether law-of-the-case standard or issue preclusion should be used instead, he held that the law-of-the-case standard could and should be applied to the reuse of findings in this case.