Juanita Belleville v. John N. Young ( 2013 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2012-401
JULY TERM, 2013
Juanita Belleville } APPEALED FROM:
}
} Superior Court, Windham Unit,
v. } Family Division
}
}
John N. Young } DOCKET NO. 168-5-09 Wmdm
Trial Judge: John P. Wesley
In the above-entitled cause, the Clerk will enter:
Mother appeals pro se from the trial court’s order granting father’s motion to modify
parental rights and responsibilities (PRR), and awarding him custody of the parties’ three
children. We affirm.
The court made the following findings. Pursuant to a September 2009 parentage order,
mother and father shared legal and physical responsibilities for their children. Mother had the
children during the week, while father had them on weekends. Beginning in the summer of
2011, a dispute arose between the parties regarding the children’s wellbeing. Among other
motions, father moved to modify PRR. In September 2011, the Department for Children and
Families (DCF) filed petitions alleging the children to be without proper parental care while in
mother’s custody. Father was granted temporary custody of the children pending further
hearings in the juvenile dockets. Parent-child contact with mother was subject to DCF
arrangement and approval.
A merits hearing in the juvenile cases was set for December 2011, and the pending post-
judgment motions in the parentage case, including a motion to modify PRR, were scheduled to
be considered at the same time. The day before the hearing, the State dismissed the juvenile
petitions. Neither parent appeared at the hearing. When the juvenile cases were dismissed, the
September 2009 parentage order became the governing order, effectively vacating the transfer of
custody to father. Because neither parent attended the December hearing, the court dismissed the
post-judgment parentage motions as moot.
In March 2012, father moved for an emergency modification of PRR. He alleged that:
mother was withholding parent-child contact from him; mother was again failing to adequately
supervise the children to ensure that they attended school; mother’s house was a chaotic
environment unsuitable for children; and mother’s mental illness was having an adverse effect on
the children. Following a hearing, the court issued an emergency temporary order modifying
PRR. The court then held the September 2012 hearing that led to the order on appeal.
In its order, the court found that mother was attempting to cope with a significant mental
illness, which was likely untreated. It based this finding on testimony from father, mother’s
sister, the children’s therapists, and mother’s own testimony, which was characterized by
significant delusional content. Most prominently, mother persistently believed that each of her
children was born a twin, but that each twin had been taken illegally from her, possibly by DCF.
Mother brought several suits against DCF seeking information regarding the twins’ whereabouts.
The children were aware of mother’s beliefs. The court found that mother’s apparent psychotic
thought disorder was also characterized by likely auditory hallucinations that had prompted
mother to summon emergency personnel to investigate intruders in her basement, despite the
testimony of mother’s neighbor disclaiming any suspicious noises. Both father and mother’s
sister believed that mother had been diagnosed with a mental illness, but they were uncertain as
to the date of any diagnosis, the identity of any treatment provider, or whether mother had ever
been under any prolonged period of effective treatment.
The court found that during the period that father had custody of the children he provided
a much-needed structured approach to their care and guidance, particularly regarding
expectations of school attendance and performance. In mother’s custody, by contrast, the
children frequently were absent from school or tardy. Mother’s house was also extremely
disorganized and chaotic. Additionally, mother denied father parent-child contact between late
December 2011 and March 2012, which made the children anxious and unhappy. The court also
recounted an incident in July 2012 where mother refused to open the door to father and police,
who were there to retrieve the children. The children later informed father that mother had been
physically holding them while the police officer was knocking, and she directed them not to
answer the door or to leave.
The court recognized that mother loved the children. It concluded, however, that,
without further diagnosis and treatment for her present condition, which was marked by a
disordered thought process and delusional behavior, mother could not provide the necessary
physical and emotional care and support for them. The court also found that the evidence raised
profound questions about mother’s ability to exercise any parental authority, or even participate
in unsupervised parent-child contact. Mother was plainly unable to properly supervise the
children’s daily activities at present. More troublingly, the court continued, mother appeared to
lack insight into her own mental health condition such that she could be trusted to exercise
suitable judgment while in the children’s presence. The court was particularly concerned about
the effect of mother’s delusional thinking on the children.
For these and other reasons, the court concluded that father had demonstrated a
substantial and unanticipated change in circumstances, and that modification of PRR was in the
children’s best interests. It awarded father sole legal and physical responsibility for the children,
and directed that mother’s parent-child contact be supervised. Mother appealed from this order.
Mother argues that there is no basis to find a change in circumstances because there was
no evidence presented regarding the onset of her mental health issues. She also asserts that the
court erred in finding that she is mentally ill. According to mother, the court should have denied
father’s motion to modify, and ordered the children to remain with her. Mother also includes a
number of allegations about father and father’s new wife, apparently in support of her contention
that the court erred in awarding father custody. She asserts that she had a right to counsel at the
hearing, which included the right to confront witnesses at the hearing. Additionally, mother
argues that father should not have been allowed to participate in a January 2013 hearing by
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telephone. Finally, mother asks this Court to recommend that criminal charges be filed against
father. This baseless allegation is unrelated to the decision on appeal and we do not address it.
As an initial matter, mother did not have a constitutional or statutory right to court-
appointed counsel in this parentage action. Her reliance on the Sixth Amendment to the United
States Constitution is misplaced as this was not a criminal prosecution. See U.S. Const. amend.
VI (“In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his
defense.” (emphasis added). We cannot evaluate mother’s challenges to the court’s factual
findings, or her suggestion that there was insufficient cross-examination of witnesses at the
hearing, because mother failed to order a transcript of the proceedings below. Our rules require
an appellant to produce a transcript of all parts of the proceeding below that are relevant to the
issues the appellant raises on appeal. V.R.A.P. 10(b)(1); see also V.R.A.P. 10(b)(2) (appellant
must produce transcript if appellant challenges findings or evidence in support thereof). Having
failed to order a transcript, mother has waived these challenges. In re S.B.L., 150 Vt. 294, 297-
98 (1988); see also Appliance Acceptance Co. v. Stevens, 121 Vt. 484, 487 (1960) (appellant has
burden to demonstrate error in challenged rulings below and must, therefore, produce a record
that substantiates appellant’s position). Mother’s complaint about father appearing by telephone
at a January 2013 hearing is not properly before us as that hearing was held after the decision at
issue in this case. We note, however, that the trial court is authorized to allow participation by
telephone. See V.R.F.P. 4(g). The court here provided a thorough explanation for its decision to
grant father’s motion to modify, and mother fails to demonstrate any error.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
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