M.O. was born on December 14, 2014. Mother was twenty-one years old at the time; father was thirty-four. On December 17, 2014, the Department for Children and Families (DCF) filed a petition alleging that M.O. was child in need of care or supervision (CHINS). It sought emergency custody of the child. In the accompanying affidavit, a DCF social worker asserted that DCF had received a report from hospital staff expressing concern about parents' ability to adequately care for M.O. The court issued an emergency care order on December 17, 2014, and transferred temporary custody to DCF. On appeal of the trial court's finding, the father argued the trial court's findings were too vague to support its conclusion that M.O. was CHINS. He asserted that, at most, the court's findings reflected speculation that there was a potential higher risk of harm to M.O. because M.O.'s parents had unidentified "risk factors." According to father, there was nothing in the court's findings about the prenatal nurse visits or the hospital social worker's testimony that would establish the basis for a CHINS finding. Father maintained that a potential risk of harm to M.O. was not enough. Father also contended that the court failed to make sufficient findings to enable the Vermont Supreme Court to review its decision. The Supreme Court, after review, disagreed and affirmed. "We emphasize that, contrary to father's characterization of the facts, the evidence here suggests something far more serious than garden-variety new-parent jitters. Even after many months of prenatal coaching, mother was not attuned to M.O.'s cues, and could not perform basic parenting tasks such as holding the baby, feeding the baby, and checking and changing the baby's diaper. And the evidence before the court was that simple coaching of mother by professionals in the hospital would not be enough to ensure M.O.'s safety. … The trial court did not base its determination on any presumptions arising from mother's self-described learning disability, or her observed cognitive limitations. It based its determination on her observed parenting ability." The Court considered all of father's other arguments and found them to be without merit. View "In re M.O." on Justia Law

The estate of husband, William E. Simendinger, appealed an injunction order by the Superior Court that encumbered all real property held by the estate. Husband's estate also challenged the family court's award of attorney's fees. Wife Connie Simendinger and husband were married in 1987. They divorced in 2014. The final order and decree of divorce incorporated a stipulation between the parties, which provided in pertinent part that in lieu of alimony, the husband shall pay to the wife the sum of $2,250,000 ($50,000 within 30 days and the balance of $2,200,000 in one year). This amount was secured by real estate, and had been owned solely by the husband, free and clear of all mortgages. Wife received the $50,000, but husband did not subsequently pay the $2.2 million balance or secure the unpaid amount in real estate. After the thirty-day deadline passed, wife filed a motion for contempt and enforcement, as well as a motion for attorney's fees. The family court set a hearing date for August 2014 to determine how best to proceed. The decree nisi became absolute on May 3, 2014. Then husband died unexpectedly on July 14. His estate was substituted as party. The family court denied the contempt motion, and enjoined the estate from disposing or otherwise encumbering any real estate that might be subject to the divorce decree stipulation. On appeal, husband's estate argued that the family court abused its discretion by: (1) issuing an injunction against husband's estate absent a hearing to show that husband had violated a court order; (2) including certain "business properties" within the scope of the injunction; and (3) awarding attorney's fees to wife without first clearly establishing a factual basis to support an award of attorney's fees. Upon review of the family court record, the Supreme Court found no reversible error, and affirmed. View "Simendinger v. Simendinger" on Justia Law

Defendant was convicted by jury of disorderly conduct and grossly negligent operation. He argued on appeal that the evidence was insufficient to support his conviction. Defendant also challenged various conditions of probation. The charges stemmed from a March 2013 incident involving defendant and his neighbor. The neighbor was driving home on the dirt road. He was traveling approximately ten miles per hour and playing his music loudly with the windows rolled down. After passing defendant's house, the neighbor noticed a white car quickly coming up behind him. The car passed the neighbor on the left, pulled back into the middle of the road, and braked, turning sideways and blocking the road. Defendant got out of the white car and began screaming and swearing at the neighbor. He threatened the neighbor and said he was tired of the neighbor's loud music. Another person also witnessed defendant yelling. The neighbor took several pictures of the scene as he sat in his car, one of which was admitted into evidence. The picture showed tire marks across the road and defendant's car stopped in the middle of the road. The neighbor testified that had he not braked, he would have hit defendant's car. Defendant did not present any evidence on his own behalf. The jury found defendant guilty, and defendant was sentenced to two concurrent thirty-to-sixty-day sentences, all suspended, with two years of probation. With regard to probation, the State requested that the court impose the "standard conditions of probation," with the exception of restrictions on defendant's out-of-state travel, the imposition of a curfew, and the restriction on his associations (other than contacting, abusing, or harassing the neighbor). As a "special" condition, the State requested that defendant visit a mental-health counselor for an initial screening, follow any recommendations thereafter, and sign the necessary waivers to allow his probation officer to monitor his attendance and participation. Defendant also voiced concern over a mental-health condition, and over any "vague" release he may be required to sign in conjunction with mental-health counseling. Upon review, the Supreme Court affirmed defendant's conviction, but struck several of the probation conditions. View "Vermont v. Putnam" on Justia Law

Defendant appealed his conditional guilty plea to possession of cocaine, challenging the trial court's denial of his motion to suppress. Defendant argued that he was illegally seized when a police officer approached his parked car twice in a short period and, during the second encounter, asked him pointed questions about drugs. After review of the trial court record, the Supreme Court agreed, and therefore reversed and remanded the trial court's decision. View "Vermont v. Winters" on Justia Law

Defendant William Stanley, Sr., appealed his conviction of sexual assault. On appeal, defendant argued that the trial court: (1) erroneously permitted the trial and sentencing to proceed in his absence; (2) erroneously permitted the State to introduce an uncharged prior bad act as evidence; and (3) imposed the habitual-offender enhancement in a way that may have violated the Double Jeopardy Clause. Finding no reversible error, the Supreme Court affirmed. View "Vermont v. Stanley" on Justia Law

Claimant Roxanne Moran appealed a superior court's dismissal of her complaint for lack of jurisdiction. Claimant, a former employee of the Vermont State Hospital, separated from state service and applied for ordinary disability-retirement benefits in November of 2011. The Medical Review Board denied benefits, and claimant requested an evidentiary hearing after which benefits were again denied. Claimant then pursued an appeal to the superior court under Vermont Rule of Civil Procedure 75. The court dismissed the action for lack of jurisdiction, and claimant appealed. On appeal, claimant argued that because the superior court had jurisdiction over the appeal the Rule 75 action should not have been dismissed. In the alternative, claimant argued that, even if the superior court did not have jurisdiction to review the Board's decision, her timely filed Rule 75 complaint was sufficient to preserve the Supreme Court's jurisdiction under Vermont Rules of Appellate Procedure 3 and 4. In addition to its brief directly responding to claimant's arguments on appeal, the State also filed a motion to dismiss a portion of the appeal as untimely. Finding no reversible error and that the superior court indeed lacked jurisdiction to hear claimant's appeal, the Supreme Court affirmed. View "Moran v. Vermont State Retirement Board" on Justia Law

Plaintiffs Michael Bandler and MB&Co, Ltd. ("corporation") filed an interlocutory appeal of the trial court's ruling that Bandler, a non-attorney, could not represent corporation in this case. Bandler was the sole shareholder and president of corporation. Bandler sued Charter One Bank, raising several claims based on the bank's alleged failure to honor advertising promises and other representations in connection with a checking account. He argued that the trial court violated his due-process rights by ruling on the basis of the parties' respective written submissions on the issue of representation without giving him prior notice of its concerns about his representation so that he could respond "by way of papers [or] argument" before the trial court issued its ruling. Having "serious concerns about Mr. Bandler's ability to present the Corporation's claims in this case," the trial court concluded that allowing Bandler to represent corporation would be unduly burdensome to the court. The Supreme Court disagreed with plaintiffs' contention on appeal, finding the trial court acted within its discretion in deciding the pending motions without a hearing or argument and without soliciting further written argument from plaintiffs. View "Bandler v. Cohen Rosenthal & Kramer, LLP" on Justia Law

A.M. was born in October 2011 to parents who admitted to their 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. A.M.'s Mother appealed the trial court’s disposition order continuing legal custody of the minor child A.M. with the Department for Children and Families (DCF). She argued 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 contended 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 argued that the court’s order was unsupported by any findings. Finding no reversible error, the Supreme Court affirmed. View "In re A.M." on Justia Law

Two disputes were presented for the Vermont Supreme Court's review in this opinion. One dispute stemmed from a landowner’s replacement of his boathouse and construction of retaining walls that encroached onto his neighbors’ property. This dispute included claims for declaratory and injunctive relief, as well as damages on account of the landowner’s alleged trespass. The neighbors challenged the trial court’s conclusions that the landowner was entitled to build the encroaching structure by virtue of a deeded easement and that they could not prevail in a claim for trespass on account of consent or estoppel. The second dispute (flowing from and intertwined with the first dispute) involved acts of vandalism to the disputed boathouse by the occupant of the neighbors’ property. The occupant appealed the judgment against him, and the landowner cross-appealed, raising a host of issues in connection with that judgment. After review of the particular facts entered into the trial court record, the Supreme Court concluded that the trial court’s construction of the deeded easement was erroneous, and the court improperly addressed the other issues in derogation of the neighbors’ request for a jury trial. The trial court was reversed with respect to the first dispute. Finding no error with regard to the second, the Supreme Court affirmed. View "LeBlanc v. Snelgrove" on Justia Law

Defendant David Tracy's daughter was one of fifteen girls on a junior high school girls’ basketball team. The basketball coach did not play defendant’s daughter in the first two games of the season. Shortly after the end of the second game, defendant approached the coach and the coach’s nineteen-year-old daughter in the school parking lot. The coach and the coach’s daughter both testified that defendant was calm at the start of the conversation, but that the exchange soon became heated and agitated. Defendant began by saying that “he just wanted to know why [the coach] wouldn’t put his daughter in a game.” That exchange lead to charges against defendant for disorderly conduct by “abusive . . . language.” The trial court, following a bench trial, concluded that defendant’s language was not protected by the First Amendment to the United States Constitution because it constituted “fighting words.” On appeal, defendant argued that the “abusive language” prong of Vermont’s disorderly-conduct statute was overbroad and impermissibly chills a substantial amount of constitutionally protected speech without serving a compelling state interest. He further argued that, even if the statute was constitutional on its face, the speech for which he was convicted in this case was constitutionally protected. After review, the Supreme Court agreed that the speech for which defendant was convicted was beyond the reach of the abusive-language prong of the disorderly-conduct statute, and reversed the conviction. View "Vermont v. Tracy" on Justia Law