In re A.M., Juvenile , 200 Vt. 189 ( 2015 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be
made before this opinion goes to press.
2015 VT 109
No. 2014-363
In re A.M., Juvenile Supreme Court
On Appeal from
Superior Court, Chittenden Unit,
Family Division
February Term, 2015
Thomas J. Devine, J.
Matthew F. Valerio, Defender General, and Sara Puls, Appellate Defender, Montpelier, for
Appellant Mother.
William H. Sorrell, Attorney General, and Martha E. Csala, Assistant Attorney General,
Montpelier, for Appellee State.
Michael Rose, St. Albans, for Appellee Juvenile.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. EATON, J. Mother appeals from the trial court’s disposition order continuing
legal custody of the minor child A.M. with the Department for Children and Families (DCF).
She argues that the court erred by failing to take evidence on whether the disposition plan should
be amended to include reunification with A.M.’s maternal grandmother as a third concurrent
goal. Mother maintains that the court should not have taken judicial notice of a prior ruling
concerning grandmother’s unsuitability to provide even temporary care for A.M. Based on these
assertions, mother contends that the court’s order is unsupported by any findings. We affirm.
¶ 2. A.M. was born in October 2011 to parents who struggle with substance abuse.
A.M. was taken into emergency DCF custody in June 2013. In its petition alleging that A.M.
was a child in need of care or supervision (CHINS), DCF indicated that A.M. had been found in
a motel room with parents in the presence of heroin and drug paraphernalia. The court issued a
temporary-care order on June 4, 2013 transferring temporary legal custody of the child to DCF,
and A.M. was placed with his maternal grandmother.
¶ 3. A.M. was adjudicated as CHINS in November 2013 based on parents’ stipulation.
Both parents admitted to a history of drug use. They acknowledged that A.M.’s maternal
grandmother had cared for A.M. between August 2012 and January 2013 because parents were
incapable of doing so due to their drug use. During this time, mother, by agreement, was not
allowed to have any unsupervised contact with A.M. Mother was still abusing heroin in January
2013. Between February 2013 and May 2013, with a minor exception, mother was incarcerated.
Mother did not engage in any substance-abuse treatment while incarcerated. Given these facts,
as well as mother’s housing instability following her release from jail, mother admitted that she
was not in a position to parent A.M. at the time the CHINS petition was filed on June 3, 2013.
¶ 4. Father had been A.M.’s primary caretaker since February 1, 2013. He admitted
that he had relapsed on heroin and had been struggling with relapses for approximately one
month before the CHINS petition was filed. He, too, agreed that A.M. was CHINS.
¶ 5. A question arose during the CHINS merits hearing about grandmother’s
suitability as A.M.’s caretaker. DCF would not license grandmother as a foster parent and, as a
result, DCF sought to transfer A.M. to a new foster home. Mother moved to transfer temporary
custody to grandmother. In an entry order, the court indicated that it would maintain the status
quo pending an evidentiary hearing on mother’s motion, given A.M.’s age and his relationship
with grandmother. The court thus issued a temporary conditional custody order to grandmother.
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¶ 6. Between January 2014 and early May 2014, the court held three days of
evidentiary hearings on mother’s motion. In late May 2014, DCF moved to reopen the evidence
based on new allegations that grandmother was facilitating mother’s drug use and that mother
had been ordered, due to recent criminal charges, to reside with grandmother in the same
residence where A.M. lived. Following an emergency hearing, the court transferred custody of
A.M. to DCF. The court held a final hearing on mother’s motion on July 1, 2014.
¶ 7. In late July 2014, the court issued a lengthy order concluding that grandmother
was not a suitable placement for A.M. The court found, among other things, that: grandmother
had been substantiated for child abuse in 1998; two of grandmother’s children, including mother,
had been removed from her care and placed in DCF custody; grandmother was the subject of
fifteen relief-from-abuse orders obtained by various family members; reports had been made to
DCF about bruises found on A.M.; grandmother had alcohol issues in the past and was
inconsistent about her current alcohol use; grandmother admitted to smoking marijuana once or
twice a day; a marijuana pipe was found in A.M.’s bag at daycare; and grandmother often
appeared at daycare with bloodshot eyes and variable behavior, and at times, seemed incapable
of understanding what the daycare worker was saying.
¶ 8. The court also recounted an incident in mid-May 2014 where mother and father
had been observed apparently using drugs in grandmother’s car. Grandmother was seen entering
the driver’s side of the car shortly thereafter and putting a bag in the glove compartment. It was
not clear if grandmother had been in the car at the same time as mother and father. Mother and
father went to a nearby park where grandmother met them. In a search connected with this
incident, the police found a marijuana pipe, with residue, in grandmother’s purse. Heroin
packets were discovered on father, and two empty, open heroin packets were discovered in
grandmother’s car. While the court found the circumstances surrounding grandmother’s
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participation in this incident to be suspicious, it did not conclude that she facilitated any drug use
or possessed heroin.
¶ 9. Based on these and other findings, the court considered grandmother’s suitability
as a temporary legal custodian. In determining suitability, the court considered the relationship
between A.M. and grandmother, as well as grandmother’s ability to: provide a safe, secure, and
stable environment; exercise proper and effective care and control of A.M.; protect A.M. from
the custodial parent to the degree the court deemed such protection necessary; support
reunification efforts, if any, with the custodial parent; and consider providing legal permanence
if reunification failed. 33 V.S.A. § 5308(b)(3).
¶ 10. In finding grandmother to be an unsuitable placement option, the court cited her
previous substantiation for abuse, multiple relief-from-abuse orders, concerns about her previous
alcohol use and her minimization of her current alcohol use, her use of marijuana, and evidence
that she did not remember conversations with A.M.’s daycare provider. The court found that,
while recent suspicions regarding abuse of A.M. had not been substantiated, grandmother’s
history, coupled with more recent concerns, made grandmother an unpredictable and potentially
dangerous caregiver for A.M., particularly because there was no indication that grandmother had
engaged in any services that might mitigate concerns about her past violent behavior.
¶ 11. For these and other reasons, the court concluded that grandmother could not
assure a safe, secure, and stable environment for A.M. Under the circumstances, she could not
support reunification efforts. The court noted that grandmother had also expressed concerns
about her own ability to facilitate A.M.’s care. Grandmother admitted to feeling overwhelmed at
times. While this alone was not enough to doubt her ability, it raised doubts about her resolve to
provide legal permanence if reunification with parents failed. Thus, based on the statutory
factors, the court concluded that grandmother was not a suitable placement for A.M. pending
disposition, and it denied mother’s motion to transfer temporary custody to grandmother.
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¶ 12. In reaching its decision, the court noted that this case had not yet reached
disposition due to the parties’ successive continuances and intervening motions. While the court
had held substantial evidentiary hearings on the issue of custody, a disposition plan had just been
filed on June 30, 2014. The court recognized the need to make predisposition custody orders
based on reliable evidence, but found it incumbent on the parties to work toward disposition so
that A.M. could achieve permanency.
¶ 13. DCF’s proposed disposition plan had concurrent goals of reunification with one
or both parents or adoption. Several days prior to the disposition hearing, mother filed an
objection to the case plan, asking that grandmother be included as a custodial option and given a
plan of services.
¶ 14. In late September 2014, the court, with a different presiding judge, held a
disposition hearing. The hearing occurred two months after the court’s ruling on grandmother’s
unsuitability and fifteen months after the CHINS petition had been filed. The court again
emphasized the long delay that had occurred in this case. It acknowledged the prior litigation
over grandmother’s suitability and indicated that it had read the prior decision on mother’s
motion to transfer custody. The court found that a critical amount of time had been lost due to
that motion, and for A.M.’s sake, it could not afford any more delay.
¶ 15. During the hearing, the court discussed the proposed disposition plan with each
parent, with A.M.’s attorney, and with the guardian ad litem, inquiring whether they had any
objections to it. It asked parents about the progress that they were making in addressing their
substance-abuse problems and other issues. The court suggested that additional visitation might
be warranted to achieve the goal of reunification, and it encouraged parents to demonstrate their
commitment to achieving this goal. Aside from a minor factual correction, father indicated that
he had no objections to the plan. Aside from the issue involving grandmother, discussed below,
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mother stated that she had no objection to the plan. A.M.’s attorney and the guardian ad litem
also agreed with the proposed plan.
¶ 16. As indicated, mother asked the court to amend the disposition plan to include
adoption or some kind of custody placement with grandmother as a third option. The court
denied mother’s request. It explained that the prior litigation involving grandmother had brought
to light many troubling issues. The court recognized grandmother’s role in A.M.’s life, but it
pointed to all of the evidence found by the court in its July 2014 decision, including
grandmother’s substantiation for child abuse, the numerous relief-from-abuse orders obtained
against her, her minimization of her alcohol use, and her regular use of marijuana. The court was
also troubled by the fact that empty packets of heroin were found in grandmother’s car, which
raised obvious safety issues.
¶ 17. The court noted that parents did not challenge the court’s ability to find that they
were unfit to care for A.M.—they had essentially stipulated to the facts in the proposed
disposition report. The court found no obligation to determine, by clear and convincing
evidence, that grandmother was unsuitable as a caretaker. Given this, the court found it
appropriate to take judicial notice of the prior findings concerning grandmother. It had the same
concerns about grandmother expressed in the earlier ruling. The court also found it unlikely that
some type of custody arrangement with grandmother would provide A.M. with the permanence
he needed, as it was unlikely that a permanent guardianship or adoption with grandmother would
ever be approved.
¶ 18. The court thus overruled mother’s objection to the goals set in the disposition
plan. It found that the concurrent goals of reunification or, if reunification failed, adoption were
in A.M.’s best interests. The court made a factual correction to the plan as requested by father.
It also expressed its concern about the level of visitation provided in the plan. It set March 2015
as the target date for substantial compliance. The court adopted the plan with the amendments
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indicated and informed the parties that they would meet again in two months for a post-
disposition review.
¶ 19. After the court delivered its decision, mother’s attorney again raised the issue of
grandmother as a placement option. Counsel agreed that there were valid concerns about
grandmother’s suitability as reflected in the court’s earlier ruling. He suggested, however, that
grandmother might be able to “get on a program to rehabilitate herself” through parenting classes
and a treatment program. Counsel indicated his understanding that grandmother had been trying
to improve herself since May 2014, and he asked the court to reconsider its decision. Counsel
asserted that, while he might be wrong, he believed that mother was entitled to an evidentiary
hearing on that issue.
¶ 20. The court responded, first, by noting that mother had not requested an evidentiary
hearing at the outset of the proceedings. The court explained that they had just completed a
hearing, and there had already been four separate hearings about grandmother’s suitability, with
hours and hours of testimony. The court thus denied the motion to reconsider. It noted,
however, that if grandmother continued to show the type of progress that counsel alluded to,
mother could move to modify the disposition order if reunification with parents seemed unlikely,
and if there was clear evidence that grandmother had a new suitability that the court did not find
before.
¶ 21. Mother appealed from the court’s order. Mother argues that the trial court
violated her right to a disposition hearing. She maintains that she had a statutory and due process
right to present evidence concerning grandmother’s suitability. Mother suggests, for the first
time on appeal, that the court should not have taken judicial notice of the earlier ruling
concerning grandmother because this decision involved “a separate, irrelevant, prior hearing,
involving different issues, with a different burden of proof and a different statutory question.”
Had a “proper hearing” been held, mother continues, she would have been able to cross-examine
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the author of the disposition report and counter the report’s assertions with evidence of her own.
Finally, mother contends that the court’s disposition order is unsupported by any factual findings
because it took no evidence.
¶ 22. We turn first to mother’s argument that she had a right to present evidence
concerning grandmother’s suitability. Having recently taken extensive evidence on the
suitability of the third party, we conclude 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. For this reason, mother’s rights were not violated by the court’s decision not to
hear additional evidence of grandmother’s suitability.
¶ 23. The disposition process starts with a disposition case plan filed by DCF, which
includes a primary permanency goal—finding “a safe and permanent home” for the child—and
may include a concurrent permanency goal. 33 V.S.A. § 5316(b)(1). Here, as in many CHINS
cases, the disposition case plan provided concurrent goals of reunification with the parents or
adoption. DCF argues that a case plan cannot include a third goal of placement with a third-
party relative, but we need not reach that argument.
¶ 24. The purpose of a disposition hearing is to decide the disposition order for the
child who has been found to be CHINS. In re B.R., 2014 VT 37, ¶ 14, 196 Vt. 304, 97 A.3d 867;
see 33 V.S.A. § 5317. The statute provides seven different authorized disposition placements,
the final one being “[a]n order transferring legal custody to a relative or another person with a
significant relationship with the child,” 33 V.S.A. § 5318(a)(7), the alternative placement order
sought by parents if reunification with them could not occur within the specified time limits.
The court can make such an order only based on findings “regarding the suitability of that person
to assume legal custody of the child and the safety and appropriateness of the placement.” Id.
§ 5318(e). Having adopted the findings from the temporary-care hearing, the court made clear
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that it could not conclude that placement with grandmother was safe or appropriate or that she
was a suitable custodian.
¶ 25. Mother accepted that conclusion as of the time of the disposition hearing, but
argued that grandmother could become a safe and appropriate placement with proper services,
essentially with a reunification plan as if she were a parent. We find nothing in the statute that
suggests that such a disposition alternative would meet the permanency goal, especially in a case
in which permanency already was excessively delayed. The trial court has discretion to reject
the presentation of further evidence in support of a disposition alternative so obviously
inconsistent with reaching a permanency goal within a reasonable period of time.
¶ 26. Like the trial judge, we find it troubling that this CHINS case was filed in June
2013, the merits decision was finally rendered on November 18, 2013, and the disposition
hearing was not held until September 24, 2014, ten months after the merits determination and
almost sixteen months after the filing of the case. Clearly the statutory requirement that a
disposition hearing be held within thirty-five days after a finding that a child is CHINS was not
satisfied. Id. § 5317(a). But we find no meaningful violation of the statutory hearing
requirement or any violation of mother’s due-process rights by the procedure employed by the
court here. We affirm the trial court’s decision not to allow additional evidence of
grandmother’s suitability.
¶ 27. Mother next argues, almost exclusively in her reply brief, that the court could not
take judicial notice of its prior findings concerning grandmother in assessing her suitability as a
custodian for A.M. According to mother, this practice is not allowed under Vermont Rule of
Evidence 201. Mother cites Vermont case law and out-of-state cases that she believes support
her position.
¶ 28. We conclude that mother waived this argument by failing to raise it below. As we
have often repeated, “[t]o properly preserve an issue for appeal a party must present the issue
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with specificity and clarity in a manner which gives the trial court a fair opportunity to rule on
it.” In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270-71 (2001) (quotation omitted). Mother
did not challenge the court’s reliance on its prior findings below; she accepted these findings and
conceded that they raised valid concerns about grandmother. After the court had concluded the
hearing and adopted the disposition plan, mother’s counsel requested an evidentiary hearing “on
new developments with respect to [grandmother].” This is not an objection to the validity of the
existing findings about grandmother set forth above or to the court’s decision to take judicial
notice of those findings. “We will not consider any matter raised for the first time on appellate
review.” In re C.H. & M.H., 170 Vt. 603, 604, 749 A.2d 20, 22 (2000) (mem.); see also In re
T.D., 149 Vt. 42, 45, 538 A.2d 176, 178 (1987) (affirming trial court’s disposition order, which
included findings based in part on disposition report that had been filed with court but never
admitted into evidence, where parents raised no objection to procedure in trial court, and parents
suffered no prejudice).
¶ 29. Mother suggests that there is an exception to our preservation rule for judicial-
notice arguments. Vermont Rule of Evidence 201(e) provides: “A party is entitled upon timely
request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of
the matter noticed. In the absence of prior notification, the request may be made after judicial
notice has been taken.” According to mother, this language allows her to raise her argument for
the first time on appeal. Mother cites no case in which a court has reached such a conclusion.
This argument is immaterial, in any event, as the trial court here expressly notified mother that it
intended to take judicial notice of its prior findings. Mother had the opportunity to raise a timely
objection below, and she failed to do so. She therefore failed to preserve this argument.
¶ 30. Even if mother had preserved this argument, we would find it without merit. Rule
201(a) provides, in relevant part, that the court may take judicial notice of “adjudicative facts.”
“A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of
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accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” V.R.E. 201(b). “Judicial notice is premised on the concept that certain facts or
propositions exist which a court may accept as true without requiring additional proof from the
opposing parties.” Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th
Cir. 1997).
¶ 31. At issue here is the court’s recognition of findings made at an earlier stage of the
same case. It is “settled . . . that the courts, trial and appellate, take notice of their own respective
records in the present litigation, both as to matters occurring in the immediate trial, and in
previous trials or hearings.” 2 K. Broun, McCormick on Evidence § 330 (7th ed. 2013); see also
In re Brown, 374 N.E.2d 209, 211 (Ill. 1978) (“Clearly, a court may and should take judicial
notice of other proceedings in the same case which is before it and the facts established
therein.”). “It is axiomatic that a party is not required to prove facts that a trial court judicially
knows. A trial judge judicially knows what has previously taken place in the case on trial.”
Vahlsing, Inc. v. Mo. Pac. R.R. Co., 563 S.W.2d 669, 674 (Tex. Civ. App. 1978).
¶ 32. This does not mean that these facts will dictate the outcome of later proceedings
within the same case, as different legal questions are presented at different stages of litigation.
Nor does it preclude additional consideration of those issues. The question of whether a child is
CHINS, for example, presents a very different legal question than whether the termination of a
parent’s rights is in a child’s best interests. But the fact that a child has been determined to be
CHINS, and the factual findings supporting that determination, are matters not subject to dispute
and capable of ready determination. Many of the findings made at one stage of a juvenile
proceeding will need to be updated to reflect parents’ and children’s current situation. Thus, if a
court found that parents were homeless at the time of the CHINS order, for example, or addicted
to drugs, that does not mean that parents are precluded from presenting evidence at a later
proceedings that they are no longer homeless or addicted to drugs. But it is entirely proper for
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the Court at that latter stage to judicially notice that the parents were, at an earlier time in the
case, found to be homeless or addicted. The court need not turn a blind eye to its prior findings,
mindful that parties also retain the opportunity, as set forth in Rule 201, to challenge “the
propriety of taking judicial notice and the tenor of the matter noticed.” V.R.E. 201(e). Judicial
notice is the mechanism by which the court may incorporate or reference prior findings within
the same case, and the court may consider judicially noticed findings in combination with new
evidence, if any, in reaching its decisions.1
¶ 33. In addition to a treatise recognizing the appropriateness of such action, see K.
Broun, supra, § 330, courts throughout the country have also found it appropriate to use judicial
notice to incorporate, refer to, or rely upon findings made in juvenile cases at a later stage of the
same proceeding. See In re Tanya F., 168 Cal. Rptr. 713, 7156 (Ct. App. 1980) (concluding that,
in terminating mother’s parental rights, trial court did not err in taking judicial notice of findings
and orders in earlier dependency proceedings, explaining that “[a] court may take judicial notice
of the existence of each document in a court file, but can only take judicial notice of the truth of
facts asserted in documents such as orders, findings of fact and conclusions of law, and
judgments”); In re O.J.S., 844 P.2d 1230, 1233 (Colo. App. 1992) (finding it appropriate for
1
The concurrence suggests that courts should rely on issue preclusion rather than
judicial notice in order to rely on findings made at an earlier stage of the same proceeding. Issue
preclusion “bars the subsequent relitigation of an issue which was actually litigated and decided
in a prior case between the parties resulting in a final judgment on the merits, where that issue
was necessary to the resolution of the action.” Berlin Convalescent Ctr., Inc. v. Stoneman, 159
Vt. 53, 56, 615 A.2d 141, 144 (1992) (emphasis added) (quotation omitted). “Under our rules,
‘any order from which an appeal lies’ is a judgment.” Iannarone v. Limoggio, 2011 VT 91, ¶ 17,
190 Vt. 272, 30 A.3d 655 (quoting V.R.C.P. 54(a)). Even assuming that the doctrine of issue
preclusion applies to final judgments within the same case, the concurrence does not explain why
a temporary, nonappealable, interlocutory order such as the one at issue here is a “final
judgment” and thus entitled to preclusive effect. See Hoffman v. Blaski, 363 U.S. 335, 340 n.9
(1960) (noting that res judicata did not apply where orders at issue “were (1) interlocutory, (2)
not upon the merits, and (3) were entered in the same case by courts of coordinate jurisdiction”).
Under the concurrence’s theory, even if grandmother’s circumstances changed dramatically
during the course of these juvenile proceedings, she could never be considered a suitable
guardian for A.M. That issue would be permanently foreclosed.
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court to take judicial notice of record of two dependency and neglect actions concerning father’s
children that were consolidated for termination hearing, and stating that “[a] court may take
judicial notice of its own file, its findings of fact, and its conclusion of law”); In re Ty M., 655
N.W.2d 672, 691 (Neb. 2003) (holding that court did not err in termination proceeding by
admitting into evidence its own records and case plans in interwoven and dependent
controversy); State v. Norwood, 277 N.W.2d 709, 711 (Neb. 1971) (“[A juvenile court] has a
right to examine its own records and take judicial notice of its own proceedings and judgment in
an interwoven and dependent controversy where the same matters have already been considered
and determined.”); Davis v. McMillian, 567 S.E.2d 159, 161-62 (N.C. Ct. App. 2002)
(explaining that trial court may take judicial notice of findings from prior custody order
regarding child); Raynor v. Odom, 478 S.E.2d 655, 657 (N.C. Ct. App. 1996) (“No decisions in
North Carolina specifically indicate that it is improper for a trial court to use orders from
temporary hearings . . . in the same case to support permanent custody orders. This Court has
found that it is not improper for a trial court to take judicial notice of earlier proceedings in the
same cause.”).
¶ 34. We reach a similar conclusion here. The trial court could properly consider the
findings from the temporary-care order, by taking judicial notice of them, in assessing, for
disposition purposes, grandmother’s suitability as A.M.’s caretaker. The findings were made
within the same case after a contested hearing. The findings were capable of ready
determination simply by reference to the court’s own file. Those findings were reflective of the
state of the suitability of grandmother at the time they were made. No evidence was proffered to
show that grandmother’s situation had changed since the findings were made.
¶ 35. While some courts are reluctant to take judicial notice of court records from one
case to be used in a different case, this is not true of court records within the same case. See,
e.g., 2 Broun, supra, § 330; see also 21B C. Wright & K. Graham, Federal Practice and
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Procedure: Evidence 2d § 5106.4, at 228-29 (2d ed. 2005) (recognizing that, at common law,
courts could notice their own records, and that writers and state drafters “generally agree that
courts can take judicial notice of court records under Rule 201(b)(2)”). Courts that refuse to take
judicial notice of findings of fact from a different case reason that such findings are not
indisputable and that taking notice of findings would make the doctrine of res judicata
superfluous “because a party in one case could not dispute any fact that was found true in
another case, whether or not the party had any opportunity to litigate that fact.” 21B Wright &
Graham, supra, § 5106.4, at 235.
¶ 36. Mother relies solely on cases where courts have taken judicial notice of court
records from a case other than the one before the court. We are not here concerned with a court
taking judicial notice of findings made in one case and then applying those findings in a separate
case, and these policy concerns are not at issue here. Thus, we find the cases cited by mother
unpersuasive here. See, e.g., In re Estate of Leno, 139 Vt. 554, 557, 433 A.2d 260, 262 (1981)
(“It is improper for a court to take judicial notice of the files, records and judgment in a case
other than that on trial.” (emphasis added)), abrogated by Jakab v. Jakab, 163 Vt. 575, 578-79,
664 A.2d 261, 263 (1995) (stating that “broad statement of Leno goes too far” in light of
procedural safeguards found in Rule 201, and finding it “improper to judicially notice the content
of testimony in another proceeding,” but finding error harmless under the circumstances); see
also In re Torres, 2004 VT 66, ¶¶ 7-8, 177 Vt. 507, 861 A.2d 1055 (mem.) (distinguishing Jakab
and finding it appropriate to take judicial notice of plea-hearing transcript in post-conviction
relief (PCR) case because PCR proceeding and defendant’s underlying criminal case were parts
of same “case” for purposes of the record, and transcript was “exactly the type of document
subject to judicial notice under our rules because it is an accurate record of sworn plea colloquy
testimony”); Fontaine v. Dist. Court of Vt., 150 Vt. 28, 30, 547 A.2d 1362, 1363-64 (1988)
(stating that, in criminal-refusal case, court erred by taking judicial notice that defendant had
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previously been convicted of driving under the influence (DUI) in order to find that defendant
was person not unfamiliar with DUI processing procedure, although error was harmless); Walker
v. Town of Newfane, 146 Vt. 212, 216, 499 A.2d 777, 779 (1985) (stating that “proceedings in
another case may not be taken notice of by the court without affording both parties an
‘opportunity to meet and explain’ matters considered in the prior proceeding” (quotation omitted
and emphasis added)); Gen. Elec. Capital Corp., 128 F.3d at 1082 n.6 (agreeing that “courts
generally cannot take notice of findings of fact from other proceedings for the truth asserted
therein because these findings are disputable and usually are disputed,” but finding it
“conceivable that a finding of fact may satisfy the indisputability requirement of Fed. R. Evid.
201(b)”); Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.
1992) (stating that court may not take judicial notice of document filed in another court to
establish truth of matters asserted in case before it); Murphy v. Islamic Republic of Iran, 740 F.
Supp. 2d 51, 58 (D.D.C. 2010) (concluding that courts are not prohibited from taking judicial
notice of “truth” of findings and conclusions of law in cases other than one on trial, but it is
inappropriate absent some particular indicia of indisputability); City of Amsterdam v. Goldreyer,
Ltd., 882 F. Supp. 1273, 1278-79 (E.D.N.Y. 1995) (“New York law is clear that a court may take
judicial notice of a document filed in another court not for the truth of the matter asserted in the
other litigation, but rather to establish the fact of such litigation and related filings.” (quotation
omitted)).
¶ 37. Our conclusion that the court acted properly here is consistent with our juvenile
statutes. Section 5315(d) of Title 33 provides that “a finding of fact made after a contested
temporary care hearing based on nonhearsay evidence may be adopted by the [c]ourt as a finding
of fact at a contested merits hearing provided that a witness who testified at the temporary care
hearing may be recalled by any party at a contested merits hearing to supplement his or her
testimony.” The assumption behind the statute is that temporary-care hearings occur before
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merits hearings. While this is usually so, the case before us presents an exception where the
temporary-care hearing comes after the merits hearing.
¶ 38. We see no barrier to applying the same principle here, as long as the findings of
the temporary-care hearing were made under the same standard of proof applicable in the
disposition determination. We consistently have held that a finding of fact made in a merits
decision may be adopted by the court in a disposition determination unless the standard of proof
required for disposition is higher than that actually employed in making the finding. See In re
D.G., 2006 VT 60, ¶ 3, 180 Vt. 577, 904 A.2d 1206; In re J.T., 166 Vt. 173, 179-80, 693 A.2d
283, 287 (1997); In re C.K., 164 Vt. 462, 471, 671 A.2d 1270, 1275 (1995); In re J.R., 164 Vt.
267, 271, 668 A.2d 670, 674 (1995). Section 5315(a) of Title 33 specifically authorizes merits
findings to be made to a standard of clear and convincing evidence in the court’s discretion,
rather than by the merits-required preponderance. The reason for this provision is so that those
findings may, if appropriate, be incorporated into the findings made at a termination of parental
rights hearing, where the applicable standard is clear and convincing evidence. If the Court
could not take judicial notice of its earlier merits findings at the termination hearing, there would
be no need to authorize the court to employ the higher standard of proof.
¶ 39. The legal standard for evaluating grandmother’s suitability as a temporary
custodian was also similar to the standard for placing the child with her at disposition. Both
statutes require the court to find that grandmother could provide a safe and secure environment
for A.M., with grandmother’s ability to provide legal permanence also a factor. See 33 V.S.A.
§§ 5308(b)(3)(A), 5318(e). The same burden of proof—a preponderance of the evidence—
applied in both proceedings. In this particular case, the judicially noticed findings were
essentially dispositive of the issue of grandmother’s suitability, and the court reasonably
concluded that any custody arrangement with grandmother would not provide A.M. with the
permanence he needed. As previously noted, parents proffered no evidence that grandmother
16
had become a suitable custodian. If grandmother’s circumstances did change and she
demonstrated a new suitability, then mother could move to modify the disposition order.
¶ 40. Even aside from the judicial-notice issue, we fail to see any prejudice that mother
suffered in this case. Mother had four days of evidentiary hearings to show why grandmother
would be a suitable custodian for A.M. As previously noted, she identified no evidence at the
disposition hearing or on appeal that would call any of the existing findings into doubt; she
identified no new evidence below or on appeal to show that grandmother should now be
considered a suitable custodian. Absent any new evidence, we can discern no harm that she
suffered from the failure to hold another evidentiary hearing on grandmother’s suitability. As
the court noted, moreover, mother was free to move to modify the disposition order if
reunification with parents seemed unlikely and if there was clear evidence that grandmother had
a new suitability that the court did not find before.
¶ 41. Thus, under all of these circumstances, and assuming arguendo that mother
preserved her arguments, the court did not err in incorporating the findings in its prior ruling
here. The court appropriately declined mother’s belated request to hold an additional evidentiary
hearing on whether reunification with grandmother should be included as a “third goal.” It acted
in A.M.’s best interests in doing so. Given our conclusion, we need not reach DCF’s argument
that the law does not allow for three or more concurrent case plan goals. See 33 V.S.A.
§ 5316(b)(1) (providing that disposition case plan shall include, as appropriate, a permanency
goal and it may also identify a concurrent permanency goal).
¶ 42. Finally, we find mother’s assertion that the court’s disposition order is
“unsupported by any factual findings” without merit. The court issued a written disposition
order reflecting that its findings and conclusion were based on factual stipulations and
representations made by the parties at the hearing. As previously discussed, parents agreed with
the disposition plan, with the exception of the issue involving grandmother, and they essentially
17
stipulated to the facts demonstrating their unfitness. The court made clear findings on the record
with respect to the question of grandmother’s inclusion in the disposition plan and with respect
to the amendments it made to the proposed disposition plan. Contrary to mother’s assertion, we
find it evident “what was decided and how the decision was reached.” In re M.B., 147 Vt. 41,
45, 509 A.2d 1014, 1017 (1986). We find no error.
Affirmed.
FOR THE COURT:
Associate Justice
¶ 43. DOOLEY, J, concurring. I agree with the result of the majority decision and
specifically agree with the part of the decision that holds that mother cannot challenge the trial
court ruling to take judicial notice of the findings from the temporary-care hearing because she
failed to make that challenge below. If the majority decision ended there, I would sign on to it.
But the majority, in eleven paragraphs of dicta, has decided to approve of the trial court’s use of
judicial notice to adopt the findings from the temporary-care hearing. I believe that the dicta is
wrong and take this opportunity to explain my rationale.
¶ 44. The concept of judicial notice is completely embodied in Vermont Rule of
Evidence 201, a rule that is fully consistent with preexisting Vermont evidence law on the
subject. Although the majority appears to accept the point that it must find authorization for its
theory of judicial notice within Rule 201, its method of doing so is clearly inconsistent with the
language of the rule. I believe it is important to allow judicial notice only in very narrow and
clearly defined circumstances, as I explain in more detail below. I also believe that if we are
going to allow judicial notice, our most important contribution in this decision is to explain when
18
and how findings made during one part of a juvenile case can be used in another, and the
majority decision fails to do that. For these reasons, I dissent from the majority’s rationale.
¶ 45. Before turning to the applicable law, it is important to understand the findings of
fact in issue. As the majority states, the findings resulted from evidence presented over four trial
days on the issue of whether the court should grant temporary custody of A.M. to the child’s
maternal grandmother. The thrust of the evidence was a presentation of the historical events and
determinations that caused DCF to conclude that grandmother was not an acceptable custodian,
followed by testimony of grandmother, mother, and mother’s sister minimizing the events and
determinations and often testifying that they never happened. The majority recounted one
incident where the court could not find that grandmother committed the misconduct alleged by
DCF. For most of the events, often based on determinations by the court or DCF at the time, the
court did not find credible the evidence of grandmother, mother, or mother’s sister. The court
did not find credible grandmother’s testimony that she had overcome her alcohol and drug abuse,
and it found that grandmother was a regular user of marijuana.
¶ 46. While nothing in the hearing was unusual for a CHINS proceeding involving
parents with a history of opiate addiction, the characterization of grandmother as a custodian was
hotly disputed and involved evidence of child abuse, other domestic abuse, inadequate parenting,
and alcohol and drug abuse stretching over many years. I start with the substance of the findings
to make an obvious point. No one could make a serious claim that the facts found by a trial court
could be judicially noticed except in a circumstance where the court has found them in another
event in the case before the court. Further, if these facts can be judicially noticed, then any facts
could be judicially noticed if they are found by the court at some time in the proceeding—the
substance of the facts involved is generally irrelevant to the issue.
¶ 47. Three other preliminary points are important. Rule 201 opens in subdivision (a)
with a statement of its scope: “This rule governs only judicial notice of adjudicative facts.” This
19
statement conveys two policy judgments: the rule does not govern judicial notice of facts that are
not adjudicative, and it does govern judicial notice of facts that are adjudicative. The first of
these judgments is unimportant to this case because we are dealing only with adjudicative facts.
The second of these judgments is my first preliminary point—judicial notice of adjudicative facts
is governed by Rule 201 and nothing else. The majority seems to recognize this point, but not its
full meaning. This point is important because judicial notice is a concept that is broadly invoked,
often in circumstances that have little to do with the scope of the rule, or even the circumstances
in this case. To the extent that judicial notice is invoked in circumstances that are not within the
scope of the rule, it is a misuse of the term—a misuse that has undesirable consequences.
¶ 48. The second preliminary point is that, contrary to the decision of the majority,
taking judicial notice does control how a fact can be used in a proceeding, at least in noncriminal
cases. That is the subject of Rule 201(g): “In a civil action or proceeding, the court shall instruct
the jury to accept as conclusive any fact judicially noticed.” (Emphasis added.) While the
language describes a situation where a jury is the factfinder, it also applies where a judge is the
factfinder because the noticed fact binds the parties. 21B C. Wright & K. Graham, Federal
Practice and Procedure § 5111.1, at 327 (2d ed. 2005) (discussing identical Federal Rule of
Evidence 201(g)). It applies here. In essence, a finding made to determine temporary care of the
child automatically becomes a finding with respect to whether grandmother should become the
permanent custodian.
¶ 49. The majority suggests that both the decision to judicially notice a fact and the
effect to be given that fact is discretionary because of the opportunity to contest contained in
Rule 201(e). In fact, judicial notice is “mandatory” if a party so requests and the request is
properly supported, essentially the situation here. V.R.E. 201(d). The majority’s decision makes
prior findings subject to judicial notice as a matter of law, eliminating any discretion in the
decision. Rule 201(e) allows a party to contest the “propriety” of taking judicial notice and the
20
“tenor” of the matter noticed. Propriety means whether the fact is indisputable. 21B Wright &
Miller, supra, § 5109, at 287. There can be no argument whether that standard is met under the
majority’s decision. The issue of “tenor” is whether the fact to be noticed is the same as that in
the source. Id. Again, argument about its presence is foreclosed. The opportunity to contest
judicial notice under the majority’s theory is an illusion.
¶ 50. The third preliminary point is that we have not held that a court can take judicial
notice of earlier findings from another event in a proceeding in deciding a later disputed issue in
the same proceeding. In saying this, I recognize that the State sought such a holding in In re
T.C., 2007 VT 115, 182 Vt. 467, 940 A.2d 706, where the State asked the trial court to judicially
notice findings from involuntary medication and initial mental-health commitment proceedings
to decide whether to order continued involuntary treatment. We held that the court could
judicially notice that it initially ordered hospitalization and that another court ordered the
involuntary medication. Id. ¶ 16. We also affirmed the trial court’s decision not to judicially
notice any findings from either the initial commitment proceeding or the involuntary-medication
proceeding. Id. ¶¶ 15-16. Indeed, our discussion suggested that the preclusive effect the State
sought had to be based on principles of issue preclusion, exactly my position here. Id. ¶ 18.
Again, my third preliminary point is that we have not decided the question presented here. More
specifically, we have never decided that the court can judicially notice findings from an earlier
stage of a juvenile proceeding in order to determine an issue arising in a later stage.
¶ 51. This brings me back to the requirements of Rule 201 as applied to facts found by
the trial court at an earlier event in the proceeding. Rule 201(b) provides that “[a] judicially
noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” The first
prong of Rule 201 is clearly inapplicable to findings of fact. Facts established by findings from
21
evidence presented to the court are not facts “generally known,” as that term is used in the rule.
Facts “generally known” include, for example, matters of common knowledge, business
practices, human or animal behavior, or laws of nature. Reporter’s Notes to V.R.E. 201. That
description would not apply to the past and present conduct and habits of grandmother, who is
not a public figure.
¶ 52. Facts found based on evidence would fit only rarely under the second prong of
Rule 201—where, for example, the court found that the Earth is round based on the testimony of
a witness. While the findings of trial courts reflect a professional resolution of often-conflicting
evidence, one could not place those facts beyond reasonable questioning. 21B Wright &
Graham, supra, § 5106.4, at 234-35 (“[I]ntuitively judicial findings of fact seem different. This
may explain why courts frequently get it wrong. While judicial findings of fact may be more
reliable than other facts found in the file, this does not make them indisputable. . . . [M]ost
courts agree that Rule 201 does not permit courts to judicially notice the truth of findings of
fact.”). Indeed, they are based only on the evidence before the judge in the context of a
particular dispute. And of course, they often are questioned on appeal. The findings here are
being questioned by mother, who is arguing that if she could put on new evidence she could
demonstrate that at least part of the findings are inaccurate. Again, the past and present conduct
of grandmother is not subject to “accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.”
¶ 53. This prong clearly demonstrates the difference between the holding of T.C. and
the extension of T.C. the majority adopts here. In T.C., we affirmed the trial court taking judicial
notice of the prior orders of the court and the statutory elements on which they were based. 2007
VT 115, ¶ 15. The order and its content are capable of accurate and ready determination from
the court records—the only source of such information and one “whose accuracy cannot
reasonably be questioned.” See 21B Wright & Graham, supra, § 5106.4, at 228. Similarly, the
22
fact that the court made certain findings of fact could be the subject of judicial notice. What is
clearly outside the authorization of Rule 201(b)(2) is the substance of the facts found. Id.
§ 5106.4, at 234-35.2
¶ 54. The only way that facts found based on evidence become accurate beyond
reasonable question is by making them so as a matter of law, turning the consequence of judicial
notice—indisputability—into the reason why it is allowed, perfectly circular reasoning.
Fundamentally, this is the reasoning behind applying judicial notice to use the earlier findings of
fact here.
¶ 55. While it is important not to resolve this case on the inapplicable ground of judicial
notice, it is even more important to resolve it on the right ground. Findings of fact can arise in
many contexts, such as in response to a motion to continue by a party, in a decision on a motion
seeking temporary relief, or in resolution of an earlier stage of a proceeding. It is fair and just
that the findings should be conclusive in some of these instances but not in others. As a policy
matter, the main drawback to using judicial notice as a way of determining whether a finding of
fact from an earlier stage of a proceeding is conclusive in a later stage is that the nature of the
issue in which the finding was made is irrelevant. Thus, a finding of fact in response to a motion
to continue is just as conclusive as one made in a CHINS merits determination.3
2
The majority cites this same source for its proposition that the court can take judicial
notice of the substance of the facts found. In fact, the source draws exactly the distinction used
in this concurrence—a court can take judicial notice that the facts were found earlier but not of
their substance for reuse.
3
The circumstance that a fact was found under a lower standard of proof and is being
deemed conclusive on an issue for which there is a higher standard of proof is wholly consistent
with the concept of judicial notice because the fact must be indisputable for it to be considered a
subject of judicial notice under Rule 201. Thus, the standard of proof should make no difference
where a fact is properly established by judicial notice. If a fact is “indisputable,” it meets any
standard of review including one requiring proof by clear and convincing evidence.
Without mentioning judicial notice, however, we have consistently held that a finding of
fact made in a CHINS merits decision may not be adopted by the court in a disposition
23
¶ 56. Although we do not have a definitive ruling, there are two possible routes to
allowing reuse of findings from earlier proceedings in the same case. The most common method
is to allow reuse under the law-of-the-case doctrine, which applies when reuse is occurring in
one case. See In re Carrigan Conditional Use, 2014 VT 125, ¶ 26 n.4, ___ Vt. ___, ___ A.3d
___; 18B C. Wright et al., Federal Practice and Procedure § 4478, at 646 (2d ed. 2002) (“Legions
of cases, both in trial courts and appellate courts, illustrate law-of-the-case refusals to reconsider
a matter once resolved in a continuing proceeding”). We have held that the law-of-the-case
doctrine applies to findings of fact where there is no new evidence. See Halpern v. Kantor, 139
Vt. 365, 367, 428 A.2d 1132, 1134 (1981); 18B Wright et al., supra, § 4478.5, at 808 (“If an
attempt is made to press the same fact issue on an unchanged record, law-of-the-case reluctance
approaches maximum force.”). It is a rule of practice, rather than one of law, and as a result the
court has discretion to depart from it in the appropriate case. Thus, it is more flexible than
judicial notice and can be shaped to avoid overuse. See Morrisseau v. Fayette, 164 Vt. 358, 364,
670 A.2d 820, 824 (1995). Thus, even though we have recognized that the law-of-the-case
doctrine may not apply to findings of fact where new evidence is presented, “persuasive
justification should be required to support consideration of the new evidence.” 18B Wright et
al., supra, § 4478, at 680-81; see also id. § 4478.1, at 695 (stating that where earlier ruling “has
shaped later proceedings in ways that can be undone only at the cost of delay and duplicating
expense, . . . the forward progress of the case discourages reconsideration”). The law-of-the-case
doctrine fits the circumstances of this case.
determination where the standard of proof required for disposition is higher than that actually
employed in making the finding. See In re D.G., 2006 VT 60, ¶ 3, 180 Vt. 577, 904 A.2d 1206;
In re J.T., 166 Vt. 173, 179-80, 693 A.2d 283, 287 (1997); In re C.K., 164 Vt. 462, 471, 671
A.2d 1270, 1275 (1995); In re J.R., 164 Vt. 267, 271, 668 A.2d 670, 674 (1995). This is an
example of where our jurisprudence on using prior factfinding in CHINS cases is inconsistent
with the theory that findings of fact can be reused by judicial notice. We do not allow reuse
under the higher standard because the finding is not actually “indisputable,” despite the adoption
of the fiction that it is.
24
¶ 57. The second possibility is issue preclusion. We have generally analyzed the
preclusive effect of the outcome of one part of a juvenile proceeding on another based on the
principles of issue preclusion, or collateral estoppel. In In re J.R., we analyzed whether findings
and conclusions from a CHINS merits hearing had preclusive effect when the court went on to
consider termination of parental rights. We used issue preclusion to determine the preclusive
effect, holding that because the standard of proof was greater at the termination stage than at the
CHINS merits stage, issue preclusion could not apply. 614 Vt. at 270-71, 668 A.2d at 673-74;
see also In re A.S., 157 Vt. 487, 489, 599 A.2d 736, 737 (1991) (stating that collateral estoppel
prevents attack on lack of CHINS disposition order where legality of state custody was resolved
in earlier proceeding in same case). The fourth and fifth elements of issue preclusion are
particularly relevant to this discussion. They are: “there was a full and fair opportunity to litigate
the issue in the earlier action” and “applying preclusion in the later action is fair.” In re P.J.,
2009 VT 5, ¶¶ 8, 13, 185 Vt. 606, 969 A.2d 133 (mem.). Whatever the label, these are the types
of considerations that should govern reuse of the substance of findings of fact.
¶ 58. The majority claims that issue preclusion is unavailable because of the lack of a
final judgment as a result of the temporary-care hearing.4 Put another way, the majority’s
opposition is because a temporary-care order is another event in one case, where issue preclusion
involves the preclusive effect of a judgment in one case on the resolution of an issue in another
case. This way of applying issue preclusion makes perfect sense for ordinary civil litigation.
¶ 59. We recently explained, however, in In re D.D., 2013 VT 79, 194 Vt. 508, 82 A.3d
1143, that “[i]n juvenile proceedings, finality is measured differently from other types of cases
given the important rights at stake and the ongoing nature of the proceeding,” and held that the
determination of CHINS is a separate action from the disposition of the child for purposes of
4
If an order is final, it resulted from a separate action for purposes of issue preclusion.
25
finality and the obligation to appeal. Id. ¶ 22. I also note the observation of the United States
Supreme Court in State of Arizona v. State of California, 460 U.S. 605 (1983):
[W]hile the technical rules of preclusion are not strictly applicable,
the principles upon which these rules are founded should inform
our decision. It is clear that res judicata and collateral estoppel do
not apply if a party moves the rendering court in the same
proceeding to correct or modify its judgment. Nevertheless, a
fundamental precept of common-law adjudication is that an issue
once determined by a competent court is conclusive.
Id. at 619 (citation omitted).
¶ 60. Of all of the elements of issue preclusion, the one that has most evolved is the
final judgment element. Thus, § 13 of the Restatement (Second) of Judgments provides that “for
purposes of issue preclusion . . . , ‘final judgment’ includes any prior adjudication of an issue in
another action that is determined to be sufficiently firm to be accorded conclusive effect.”
Restatement (Second) of Judgments § 13 (1982). We have adopted § 13, in part, in a related
context, see Scott v. City of Newport, 2004 VT 64, ¶ 12, 177 Vt. 491, 857 A.2d 317, and have
routinely relied upon this Restatement, see, e.g., OCS/Pappas v. O’Brien, 2013 VT 11, ¶¶ 20-21,
193 Vt. 340, 67 A.3d 916.
¶ 61. It is important to recognize that finality for purposes of issue preclusion under
§ 13 need not be the same as for the right or obligation to appeal. The “sufficiently firm”
standard is not the same as that for determining whether an order is final such that it can be
appealed. See In re Burlington Bagel Bakery, Inc., 150 Vt. 20, 21, 549 A.2d 1044, 1045 (1988)
(quotation omitted) (stating that order is final for purposes of appeal where it “conclusively
determine[s] the rights of the parties, leaving nothing for the court to do but to execute the
judgment” (quotation omitted)). Whether the temporary-care order involved in this case can be
appealed is generally irrelevant because the disposition order will moot the temporary-care order
and is likely to occur before any appeal of the temporary-care order could be decided. The
absence of the realistic ability to appeal, as well-asserted errors in reaching the temporary care
26
order, can, of course, be grounds for a determination that applying issue preclusion in these
circumstances would be unfair.
¶ 62. I would hold that reuse of the findings in this case should be judged under the
law-of-the-case standard because that doctrine clearly applies and decides this case. I would
leave for other cases to determine when principles of issue preclusion should be applied.
¶ 63. I concur in the disposition of this case for two main reasons. First, the
adjudication involved in determining temporary custody clearly offered the parents and
grandmother a full and fair opportunity to litigate the historical facts related to grandmother’s
qualifications as a temporary custodian. Because all parties had legal representation and the
relevant witnesses were fully examined and cross-examined in the four days of hearing, the
findings can be reused under the law-of-the-case doctrine, and it was within the discretion of the
trial court not to allow new evidence under the circumstances.
¶ 64. There is another important reason why the standards are met. Section 5315(d) of
Title 33 provides that
a finding of fact made after a contested temporary care hearing
based on nonhearsay evidence may be adopted by the Court as a
finding of fact at a contested merits hearing provided that a witness
who testified at the temporary care hearing may be recalled by any
party at a contested merits hearing to supplement his or her
testimony.
Although the statute does not technically apply here, because the court was using findings from
the temporary-care hearing to resolve a disposition option and not to determine whether a child is
CHINS, it is a legislative determination that it is fair to reuse temporary-care findings in later
stages of the proceeding. It places the parties on notice of potential reuse and provides an
additional incentive, if one is needed, to fully litigate the issues in the temporary-care hearing. It
underscores why the law-of-the-case doctrine is appropriate in this circumstance.
27
¶ 65. It is unfortunate that the majority has decided to wander unnecessarily into the
subject of judicial notice of the substance of findings of fact in dicta. In my judgment the
unintended consequences of its decision will be undesirable and prevent the proper analysis of
when the substance of findings should be reused. While I concur in the judgment, I dissent from
the alternative holding affirming the trial court’s use of judicial notice.
¶ 66. I am authorized to state that Justice Robinson joins this concurrence.
Associate Justice
28