R.B. was born in September 2008; O.B. in December 2009; and K.C. in September 2011. In August 2012, the Department for Children and Families (DCF) filed a petition alleging that the children were in need of care or supervision (CHINS) because they were without proper parental care. The court found it best to place the children with relatives if possible, and determined that the children's father's cousin Kristin and her wife Tammy Hall could take proper care of the children, at least in the short run, while work was done on a disposition plan. It was ultimately recommended that the children be placed for adoption, and the parental rights to both parents be terminated. The trial court found that Mother suffered from Munchausen’s disorder and Munchausen’s disorder by proxy. The court could not find that mother was likely to recover from these disorders at any particular time. It found no reasonable probability that mother could resume her parental duties within a reasonable period of time. Father was unwilling or unable to take over responsibility for the children’s medical care and appointments and ensure that recommendations and plans provided by DCF were implemented. As of the date of the TPR hearing, father continued to live with mother and had not developed the parenting and other skills needed to care for the children safely. It would be impossible, the court explained, for father to care for mother, protect the children, meet all of their needs, and support the family. Father was unemployed at the time of the hearing, although he was receiving some money for his work as a caretaker for mother. The parties received state benefits, which were barely sufficient to meet their financial needs. Finding no abuse of discretion in terminating the parents' rights to the three children, the Supreme Court affirmed the termination decision. View "In re R.B., O.B. and K.C." on Justia Law

Defendant Paul Aiken appealed a superior court order denying his motion to suppress his refusal to submit to an evidentiary breath test on grounds that he was denied his right to counsel. Defendant admitted to consuming alcohol prior to operating the vehicle, and preliminary breath and field sobriety tests indicated that defendant’s blood-alcohol content was above the legal limit. Defendant was detained and taken to the police barracks for processing. During processing, the sergeant read defendant his rights under Vermont’s implied-consent law. Defendant asked to speak with an attorney, and two on-call public defenders were telephoned. Defendant explained to the sergeant that he had been on hold for ten minutes, the sergeant again attempted to call both public defenders. There was no answer at any of the numbers called for the on-call attorney, and the back-up attorney’s line was busy. The sergeant told defendant that he had ten more minutes and that if neither public defender returned his call he would have to decide whether or not to take the evidentiary breath test regardless of obtaining legal consultation. After the thirty minutes elapsed, the sergeant asked defendant if he would submit to the breath test. Defendant refused to answer, and the sergeant understood this as a refusal to take the test. Defendant was charged with driving under the influence (DUI). Defendant renewed on appeal his argument that Vermont case law holding that the defender general’s office had a statutory obligation to provide twenty-four-hour legal consultation to DUI detainees, and while he was on hold for a public defender, defendant received no substantive advice. "Although the consultation here was brief, an attorney-client relationship was formed," and the Supreme Court believed "that peering behind the veil of that privacy to ascertain the quality of the consultation would open the door to eroding the privacy afforded to detainees in their right to counsel." Because defendant failed to make a decision on whether or not to take the test, the trial court did not err in denying is motion to suppress. View "Vermont v. Aiken" on Justia Law

The Board of Directors of the Arapaho Owners Association ("BOD," appellant) petitioned for a declaratory judgment seeking to reform the condominium's declaration to reflect the actual number of condominium units built and to allocate ownership interests among the units. Fifty-four units were actually built: five of the planned units each were subdivided into two "split" units, and one planned townhouse unit was never built. The master schedule of units (known as "Schedule D,") was never amended to reflect the number of units built. Sometime around 2008, issues were raised to the BOD concerning a disparity in assessments of common expenses, the claim being that owners of similar units were not paying an appropriate share. In addition, there existed potential questions concerning marketability of title due to the subdivision of certain units and the inclusion in the Declaration of the planned unit that was never built. The BOD, on behalf of the Association, brought an action in the superior court seeking to reform the Declaration to reflect the units actually built and to restate each unit's ownership share in the common areas according to the new formula that allegedly was adopted in a second amendment. The BOD in its complaint also sought a declaratory judgment to clear title to the existing units. Several owners of the split units (appellees) opposed the request for reformation, and also filed a counterclaim seeking a declaration that the second amendment failed because it, like the first, required unanimous approval under the Vermont Condominium Ownership Act (VCOA) section 1306(b). Appellees in their counterclaim also sought an injunction and money damages, claiming their assessments had been illegally increased by the new formula. The BOD filed a motion for partial summary judgment on the reformation issue, and appellees filed a cross motion for summary judgment seeking a ruling as a matter of law that the second amendment did not pass. The trial court denied the BOD's motion for summary judgment, and granted appellees' motion for attorney fees and costs. The questions on appeal before the Supreme Court were: (1) whether a unanimous decision of unit owners is required to amend the formula for assessing common expenses; (2) what equitable powers of reformation are available to cure a defect in a condominium declaration; and (3) what amount of attorney's fees, if any, was appropriate. After review, the Supreme Court concluded: (1) a unanimous decision of unit owners was required to change the assessment formula; (2) the fact that the newly created ownership interest resulting from the distribution of Unit 23F's interest might not match the percentages the developer assigned to the six half units from the original plans did not make the reassignment inequitable or improper. The trial court's reformation did not change the percentages reflected in the 1979 Schedule D that the original developer had allocated to the existing units; and (3) the amount of fees the trial court awarded to appellees was not an abuse of discretion. View "Arapaho Owners Association, Inc. v. Alpert" on Justia Law

Defendant Jeremy Lucas appealed a trial-court order finding him in violation of a probation condition (imposed as part of a deferred-sentencing agreement) requiring prior approval from a probation officer before he changed his residence. Defendant argued that because his probation conditions included two inconsistent provisions governing his choice of residence, he did not have adequate notice that his conduct would violate the conditions of his probation. Defendant also argued that the condition at issue here contained an overly broad delegation of authority to his probation officer, and that the trial court abused its discretion in revoking his deferred sentence because the violation was minor and the probation officer ultimately approved the View "Vermont v. Lucas" on Justia Law

Defendant appealed a superior court decision that concluded he violated the condition of his probation requiring him to complete the Vermont Treatment Program for Sexual Abusers (VTPSA). The court found that defendant failed to complete the required program, but it refused to review the underlying disciplinary action of the Department of Corrections (DOC) that resulted in defendant's removal from the program. On appeal, defendant argued the trial court erred in concluding that it lacked jurisdiction to consider the DOC's decision to terminate him from VTPSA. Specifically, defendant argued that: (1) the court was authorized by statute to make a final determination of whether there were grounds for revocation; (2) the court's delegation of decisionmaking authority to the DOC in a probation-violation matter violated the separation-of-powers doctrine; and (3) violation-of-probation hearings involved constitutional questions that the court had the power to review. Upon review, the Supreme Court found that the alleged substantive ground central to this appeal was a violation of VTPSA's cardinal rule against physical violence or threats of physical violence. The trial court failed to determine whether the requirement was violated. Nor did it exercise its discretion to determine whether the alleged violation was such that revocation should be ordered. Because the Supreme Court reversed on these bases, it did not reach defendant's other arguments. View "Vermont v. Cavett" on Justia Law

Mother appealed the parent-child contact and property division orders in a final divorce decree that assign her sole parental rights and responsibilities with regard to the parties' children. On appeal, she argued that the trial court was bound to consider findings of fact made by the presiding magistrate at a temporary hearing and that the court's findings did not support its conclusions. After consideration of the trial court's decision, the Vermont Supreme Court concluded that at the final hearing the trial court was not bound to consider the findings from the temporary hearing and that its decision regarding parent-child contact was clearly supported by the evidence. Mother's other arguments failed because there was no clear error in the court's findings, and the findings reasonably support the court's conclusions. View "Frazer v. Olson" on Justia Law

Zaremba Group was the owner of the 10.08-acre plot of land in question in this case. The proposed building site lies within the floodway of Lovers Lane Brook. The Project, the building of a Dollar General store, would result in a loss of flood-water storage of 1,305 cubic yards, but was designed to include a flood-mitigation cut area, which would provide additional flood-water storage of 2,544 cubic yards. The Project would narrow the Brook floodway at two points, but both of these areas are at least as wide as the Brook's narrowest section, which is just south of the Project site. The Project includes a minimum fifty-foot buffer along the Brook. Neighbors of the plot of land appealed the environmental division's decision to grant an Act 250 permit amendment to Zaremba Group to build the store on that plot. Finding no reversible error, the Supreme Court affirmed. View "In re Zaremba Group Act 250 Permit" on Justia Law

Gwendolyn Hallsmith was the planning and community development director for the City of Montpelier. Her employment was protected by a "justifiable cause" provision in the City's personnel plan. In November 2013, City Manager William Fraser placed Hallsmith on paid administrative leave, and sent a letter to her indicating that he was contemplating firing her under the City's personnel plan. In the letter, the city manager described various acts of unprofessional behavior and insubordination, damage to relationships with key individuals and governing bodies within city government, and inappropriate use of City resources. He asserted that these acts were grounds for disciplinary action under the City's personnel plan, and offered to meet with Hallsmith to consider any response she wanted to make. Hallsmith, accompanied by counsel, met with the city manager and argued her case. Following that meeting, the city manager dismissed Hallsmith from employment with the City. Hallsmith timely filed a grievance pursuant to the personnel plan, which provides for review of disciplinary action. At the grievance hearing, the city questioned Hallsmith and her witnesses extensively. Hallsmith was not permitted to cross-examine the city manager, the City's only witness. The assistant city manager, serving as the hearing officer, upheld the City's termination decision. Hallsmith subsequently filed a Rule 75 petition at the trial court, seeking reinstatement, reimbursement for lost compensation, and other remedies. In her petition, Hallsmith contested the merits of her termination, arguing that the City's decision to terminate her employment was not supported by sufficient evidence of justifiable cause, and that the hearing officer's decision to uphold the termination was not supported by the evidence and applied the wrong legal standard. She also raised a due-process challenge to the post-termination hearing procedures. In response, the City moved to dismiss the due-process claim, arguing that Hallsmith got all the process that was due. The City did not argue that the post-termination grievance hearing was constitutionally adequate. Instead, its sole argument was that the pre-termination "Loudermill" meeting, combined with the availability of a post-termination judicial remedy "Rule 75" petition challenging governmental action or a common-law action for breach of contract satisfied due process. On the merits, the City argued that there was credible evidence establishing justifiable cause for the assistant city manager's decision to sustain the City's firing of Hallsmith. The trial court rejected the City's argument that the availability of a post-termination judicial remedy in the form of a Rule 75 petition or a breach-of-contract action satisfied due process. The City appealed that decision, but after careful review of the trial court and Board records, the Supreme Court affirmed the trial court's decision. View "Hallsmith v. City of Montpelier" on Justia Law

Employer Bradford's Trucking, Inc. appealed an Employment Security Board ruling that certain individuals were employees of the company for purposes of assessing unemployment taxes. Eileen Bradford has worked for employer, Bradford's Trucking, as a bookkeeper. Her son was the company's president. Ms. Bradford opened a bookkeeping business in 2008. She did not register her business with the Secretary of State, and one of her clients was Employer. She testified that she had no written agreements with the other two companies and did not send them invoices. Ms. Bradford was paid $25 per hour by employer for her bookkeeping services. In 2010, Ms. Bradford started working full time for another company, and consequently hired a friend, Neil Swenor, to help with employer's books. Swenor was then working full time as a bookkeeper at a meat market and was looking to supplement his income. He worked for employer for about a year, working out of Ms. Bradford's home in Vergennes. He usually worked about seven to ten hours per week, for $14 per hour. Ms. Bradford signed Swenor's checks on behalf of employer. When Swenor left at the end of 2011, Ms. Bradford hired Kelsey Reed, her son's fiancee, to replace him. Reed ran a daycare business. She worked for employer from January to August 2012, for approximately the same hours and rate of pay as Sweenor, and also worked out of Ms. Bradford's home. After Reed left, Ms. Bradford resumed doing all of the payroll and bookkeeping services for employer. In June 2012, the Department of Labor assessed employer for unpaid unemployment compensation contributions for Ms. Bradford and those that helped her keep the books for Employer. Employer appealed with respect to those three individuals. Following an evidentiary hearing, an administrative law judge (ALJ) sustained the Department's assessment of contributions. Employer then appealed to the Employment Security Board, which adopted the ALJ's findings and affirmed its decision. Upon review, the Supreme Court found no reversible error in the Board's decision, and affirmed. View "Bradford's Trucking, Inc. v. Department of Labor" on Justia Law

This was a case of protracted litigation between neighbors over a maple tree. The maple tree in question was about sixty-five years old and stood about sixty-five feet tall. The trunk or stem of the tree was located entirely on Bruce and Janet Alvarez's property, approximately two feet from the property line. Although the superior court considered the tree to "effectively" be on the property line, the parties agreed that the property line did not pass through the trunk of the tree, but laid to the south of the tree trunk. When the Alvarezes bought their property approximately twenty-five years ago, the tree was about one foot in diameter at the base. Approximately half of the branches and roots from the tree now cross the property boundary and encroach onto the lot belonging to Claudia Berger and Sheldon Katz. Some roots extended under the existing deck on the Berger/Katz home. For several years Berger and Katz sought to expand their home by constructing a two-story addition on the rear which would occupy roughly the same existing footprint as the house and deck at present. Berger and Katz received the necessary permits for construction of the addition. The plans for the construction of the addition to the Berger/Katz residence necessitated cutting the roots and branches that are encroaching onto their property. Efforts to amicably resolve the problem of the maple tree in light of the planned Berger/Katz addition were unsuccessful. In 2013, when Berger and Katz considered taking unilateral action to trim the tree's roots and branches, the Alvarezes filed for and received a temporary injunction, and later a permanent one. The superior court found it more likely than not that removal of 50% of the tree's roots and branches as contemplated would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting. The final injunction barred the trimming of more than 25% of the roots and branches of the tree. The trial court granted the temporary injunction, employing what it dubbed as the "urban-tree rule." Under the "urban-tree rule," as described by the trial court, trimming the roots or branches of an encroaching tree may be proscribed if the trimming will destroy the tree. Although the judge hearing the permanent injunction questioned the validity of the "urban-tree rule," he felt it improper to apply a different legal analysis, relying upon it as the "law of the case." Berger and Katz argued on appeal of the superior court error that the court erred in granting an injunction because the common law allowed for an absolute right of a landowner to trim intruding branches and roots regardless of the impact on the offending tree; because there was no showing that the cutting would cause irreparable harm sufficient to support an injunction; and because injunctive relief resulted in a taking of their property without compensation. The Supreme Court reaffirmed Vermont's long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree, and vacated the injunction on that basis. As such, the Court did not reach appellants' other arguments. View "Alvarez v. Katz" on Justia Law