Wednesday, October 7, 2015

Grandma Got Run Over By Judicial Notice

In re: A.M., Juvenile
2015 VT 109
By Amy Davis

The fall of 2011 bore a child by the initials A.M. Unfortunately, A.M.’s parents struggled with going substance abuse, and the summer before A.M.’s second birthday, DCF filed a CHINS petition after an indication that A.M. was in a hotel room with Mom, Dad, and some heroin. A.M. was placed with his maternal grandmother pursuant to a temporary-care order.

In November 2013, A.M. was adjudicated CHINS based on his parents’ stipulation of their history of drug use.  But the big question was if Grandma was suitable to take care of A.M. given that she was not licensed as a foster parent.  Mom moved to transfer temporary custody to Grandma, and the court indicated it would maintain status quo until an evidentiary hearing.

The court had 3 days of evidentiary hearings that produced evidence that Grandma was facilitating Mom’s drug use, and Mom was living with Grandma due to some pending criminal charges.  The court said no to Grandma’s custody for a couple of reasons: Grandma had been substantiated for child abuse in 1998, Grandma’s own kids (including Mom) had been placed in DCF custody, Grandma was the subject of 15 restraining orders obtained by various family members, bruises found on A.M., and Grandma had a drinking problem.  The court decided Grandma was not suitable, and denied Mom’s motion to transfer temporary custody to Grandma.

Then there are some problems with a bunch of continuances, intervening motions, dispositions, change of judges, etc.  DCF’s plan was for either reunification with either parent or adoption.  Mom still wanted Grandma to be a custodial option, but DCF was like, “Hard pass.”

So now it’s September 2014, and there’s a disposition plan in the court with A.M.’s attorney, guardian ad litem, Mom, and Dad.  Overall, everyone was happy with the plan except for the stuff about Grandma.  Relying on the findings from the year before, the court denied Mom’s motion saying that if A.M. could not live with his parents, then he should be adopted.

Mom again wanted Grandma as a placement option, and asked for an evidentiary hearing. The court said #1: Mom has never requested an evidentiary hearing to begin with. #2: The court just had a hearing, and there had been hours and hours of testimony over four separate hearings about Grandma. So, motion denied. 

Mom appeals with two issues: #1: the court should not have taken judicial notice of the earlier ruling concerning Grandma (but this is the first time she’s asserted that), and #2: the court’s disposition is unsupported by factual findings because it took no evidence.

Regarding the right to present evidence, the SCOV holds “that the trial court had discretion to decide whether to allow parents in a CHINS proceeding to put on new evidence regarding the suitability of a third-party caretaker.” So, Mom’s rights aren’t violated.  The SCOV adds that the whole point of a disposition hearing is to decide the disposition order for a CHINS kid.  Because the court adopted the findings from the temporary care hearing, the court was clear that Grandma was not a safe or appropriate placement. Mom agreed but argued that Grandma could be safe and appropriate later with some services.  But, there’s nothing in the statute that says this would meet the permanency goal. “Permanency” is an interesting word to use given that the merits on the CHINS case was in November 2013 and A.M. was held in limbo until September 2014 when the court had the disposition hearing.

Mom’s second argument is that the court could not take judicial notice of its prior findings concerning Grandma and her suitability, citing V.R.E. 201 and some out-of-state cases.  The SCOV concludes that this issue was not raised below and therefore not appealable, but even if it had been, the argument was “immaterial” because the trial court told Mom in advance that it intended to take judicial notice of its prior findings. And, even if Mom had objected below, her objection would be without merit because the findings of fact applied to different legal questions, and taking notice of those facts would not necessarily dictate the outcome of the new legal issue.  Furthermore, it’s a big time saver to take judicial notice of prior findings and give the parties a chance to challenge those facts, instead of finding whole new facts like in an Easter Egg hunt. And, if there’s any doubt left in your mind, there’s a treatise on how this is OK.  Thus, the SCOV concludes that the trial court, when it assessed Grandma’s suitability as A.M.’s caretaker, could both take judicial notice of and consider the findings from the temporary care hearing.

The SCOV also notes that some courts are reluctant to take judicial notice of court records in one case and use them in a different case. But, this hesitation does not apply to court records in the same case.  Mom’s argument relies solely on cases where the notice goes from one case to another – a concern not present in this case.

Furthermore, this conclusion is consistent with juvenile statutes bearing the principle that a finding of fact made in a temporary care hearing based on nonhearsay evidence may be adopted as a finding of fact in a contested merits hearing later on.  Even though, in this case, the merits hearing came before the temporary care hearing, the findings were under the same standard of proof and may be adopted.

Mom’s last argument is that the disposition order is not supported by any factual findings. The SCOV disagrees, referencing the court’s written disposition packed with factual stipulations, and the fact that parents agreed with the disposition plan which contained facts to their unfitness.  The court also made clear on-the-record findings about Grandma’s inclusion, deciding she was a no-go.

Justice Dooley’s concurrence, with which Justice Robinson joins, takes issue with the majority opinion’s dicta that approves the judicial notice of the facts from the temporary care hearing, and then goes on for a 9-page explanation of his rationale.  While the overall disposition is the same, the new holding would be that reuse of the findings in this case should be judged under the law-of-the-case standard (which applies when reuse is occurring in one case) because that doctrine clearly applies and decides this case. Finally, he includes some warnings about the danger of “wandering unnecessarily” into the subject of judicial notice on findings of fact in dicta. Stay tuned to see if these predictions come true.

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