By: Elizabeth Kruska
It’s been a quiet several weeks around these parts, SCOV-wise, and then they dropped three opinions on February 20. We here at Blog HQ were lulled into complacency and now all of a sudden have to spring back into action. Speaking of spring, I’m very done with this whole “winter” nonsense and am very much in need of some spring.
First up is Echeverria and Pratt v. Town of Tunbridge, 2026 VT 5. In short, SCOV agrees with the trial court’s decision that since Town trails are public rights-of-way, the Town has authority to maintain them and ensure public access.
The plaintiffs own a hill farm that is partly in Strafford and partly in Tunbridge, and there are two public trails that cross the land in Tunbridge. The trails were established in 1987, although the Town historically didn’t maintain them. The plaintiffs bought the property… sometime between 1987 and “over a decade ago” but the opinion is not clear about this. The plaintiffs maintained the trails to be used by hikers.
Then some bicyclists thought, “wouldn’t it be super rad if we rode our bikes on the Town trails?” and the Town said, “hm, let’s think about this” and the plaintiffs responded, “heck to the no, we don’t want bicycles riding through here!” And really, everyone’s point of view here is reasonable. The plaintiffs decided they’d fix the metaphorical wagon by not maintaining the trails so that the bicyclists wouldn’t be able to ride on them. The Town played an Uno Reverse card and adopted procedures for private individuals to maintain the trails on the Town’s behalf.
The plaintiffs sued, saying the Town lacked authority to perform maintenance on the trails. There was some litigation about this that went to SCOV and then back to the trial court. On remand both parties moved for summary judgment. The trial court granted summary judgment in favor of the Town, which the plaintiffs appealed. This was affirmed by SCOV, who took a very deep dive into the statutory definitions of “highway” and “trail” and “easement” and “right-of-way.” They busted out Black’s Law Dictionary. They listened to legislative testimony from 1985.
Vermont has a pretty well-established development of the law around roads and trails, including classifications of roads. In 1986 – a year before Tunbridge established the trails in question, there was a big overhaul to Vermont’s road and highway statutes. Before 1986, trails were public rights-of-way that towns could maintain, but weren’t required to maintain. After 1986, trails got their own definition, saying they are not highways (at least not in this particular definition) and that towns aren’t responsible for maintaining them.
The plaintiffs pointed to this and said this means the Town doesn’t control the trails, so they shouldn’t be able to let people go on them to fix them or to ride their bikes on them. SCOV instead takes a broader look and combining that with other provisions of the statute and says this doesn’t make sense. A trail is a public right-of-way and there is a public easement. If the Town couldn’t engage in maintenance for the public right of way, and if the landowner didn’t do the maintenance, the trail itself would be unusable. This would render the public trail system “ineffective and superfluous.”
I’ll stop here with this one, but it’s an interesting opinion and worth reading. Affirmed.
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Next up is In re O.R.G., 2026 VT 6. It’s an adoption case but it’s really a case about service.
Here are the basic facts. Grandmother was ORG’s guardian through a guardianship, and had been for many years. Grandmother wanted to adopt ORG and filed a petition to adopt. The court told Grandmother she needed to file consents signed by the parents and also to complete service. Grandmother and the parents were in touch, and it sounds like the parents agreed with the adoption. Important to note: for an adoption to take place under our adoption statutory scheme, the birth parents’ parental rights must be terminated. Remember this for subsequent paragraphs.
There’s a provision in the statute that requires consent by the parents for an adoption. If they don’t consent, then there needs to be an evidentiary hearing. But if the parents agree with the adoption happening, they can sign a consent form. The consent form has to be signed in the presence of a person authorized to accept the consent. Who is so authorized? Well, the probate judge. Or someone authorized by the probate judge. Or a military officer or officer of the foreign service but only if the person is in the military or foreign service. The military or foreign service aside, this creates a fun chicken-and-the-egg problem. The court wants signed consents filed. But the only person who can accept the consent is the judge or someone designated by the judge. But you can’t get in front of the judge until you file. And if the court wants consents filed in the initial filing, you have to go in front of a judge… which you can’t do until you file. I hate this. It would be nice if the statute would permit a parent to sign a notarized consent and require the court to engage in a verbal relinquishment colloquy and if the parent doesn’t show up to require an evidentiary hearing like we do across the dang street in the Family Division in CHINS-related termination proceedings. But that’s not how these statutes work, and so maybe I’m suggesting to the legislature to have a little bit of a look-see at the adoption statutes.
Anyway, while there was all this back and forth with paperwork and filing and whatnot, Grandmother kind of fell out of touch with both of the parents. Service is hard if you don’t know where someone is. So, she went to the next step, which was to ask for service by publication. The probate court said no, because the adoption statutes require personal service. (I just also want to point out here that across the dang street in the Family Division in CHINS-related termination proceedings service by publication happens a lot. Maybe the legislature could, you know, look at fixing this.)
Grandmother sought and was granted permission for interlocutory appeal because now she was stuck and couldn’t go forward. She couldn’t have a hearing because she couldn’t serve the parents. She couldn’t serve the parents because she didn’t know where they were. She tried to do what she thought would work and the probate court felt the statute wouldn’t permit it.
SCOV reviews statutes de novo. SCOV also needs to avoid absurd results. They take a look at the adoption statutes and also the Civil Rules. There seems to be some friction between the adoption statute that requires “personal service” and also the Civil Rule that doesn’t define “personal service.” The Civil Rule permits publication or even a tack order. SCOV does another deep dive on the legislative history and finds that back when the adoption statutes were enacted they basically adopted (lol) Civil Rule 4 on service. SCOV concludes that any method of service under Civil Rule 4 is fine. This includes service by publication.
SCOV is clear to say it understands the Probate Court’s hesitation here. Terminating a parent’s rights is very significant, and the court is right to want to ensure everything is done correctly. However, it also doesn’t make any sense to prevent the process from moving forward here when there is an acceptable (and constitutional) way to do service.
The probate court’s order to dismiss the petition is reversed, and Grandmother/Petitioner is allowed to serve the parents by publication.
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Last up is another adoption case in In re K.P/In re Adoption of K.P., 2026 VT 4. This is a consolidated appeal of two separate actions.
Here’s the thumbnail version of the facts. Mother and Father met, got married, and had a child (KP). Not long after KP was born, the parents’ relationship unraveled, and they got divorced. The original temporary custody order in the divorce gave shared custody to Mother and Father. However, Father had some various difficulties, including some health problems, housing instability, and unstable employment. The court considered all the information, including Father’s issues, and granted Mother sole custody of KP, and gave Father time to visit with KP. This all happened in the Lamoille Family Division.
Mother met and married Stepfather and moved to Caledonia Couty. Mother and Stepfather filed a petition for a stepparent adoption in the Caledonia Probate Division. The adoption petition didn’t go anywhere for a while, until Mother finally filed a petition to terminate Father’s parental rights. When Father finally got served with this petition he filed a Motion to Enforce the contact order in Lamoille County.
Since there can’t be two competing motions in two different courts, the Caledonia adoption case was consolidated into the Lamoille family court case. The parties litigated the termination/adoption, and Mother and Stepfather’s case was denied. The court found that although Father hadn’t exercised his parent-child contact for some time, it was, in large part, because Mother and Stepfather prevented that from happening. Additionally, the problems Father had at the time of the original divorce order had largely corrected themselves and there was no reason he couldn’t or shouldn’t parent KP.
Mother and Stepfather appealed. The first piece to tackle is how the Probate appeal happens. Probate cases get appealed to the Civil Division for a hearing de novo. (Ever litigate the same adoption case twice? I have. It’s less fun and far less efficient than you’d think.) Mother and Stepfather tried to appeal the outcome of the termination/adoption to the Civil Division. This got denied, though, because that particular issue got consolidated into the Family Division case, and Family Division matters get appealed to the Supreme Court. It’s very likely Mother and Stepfather filed their appeal notices everywhere they thought they should so they didn’t blow any sort of appeal deadlines. This is confusing and I’d guess Mother and Stepfather tried to do what they could to ensure they did it right.
Moving on to the substantive part, SCOV also upholds the Family Division’s denial of the termination and adoption petitions. Although Father conceded he had not engaged in parental responsibility of KP for at least six months immediately before the petition was filed, the court found he proved he had good cause. The trial court found that Mother interfered with Father’s relationship with KP by making changes that would alter his visits, blocking his communications, and refusing to permit visits or contact with KP when he attempted to do so. The trial court also found that his health and housing right after the divorce created parenting issues.
SCOV does not disturb these factual findings because they were supported in the record by the evidence. And since the court found good cause for father’s non-engagement, and the fact that he tried to engage, the court did not terminate his parental rights.
So – the lower court here was affirmed.
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