In re Balivet – 2014 VT 41 :: 2014 :: Vermont Supreme Court Decisions :: Vermont Case Law :: US Case Law :: US Law :: Justia.
Vermont has reprimanded a judge for failing to rule promptly in a family court matter involving the guardianship of a minor child. This is the first time I have ever seen a member of the judiciary disciplined for a lengthy delay in a ruling.
In November 2001, the respondent judge granted the child’s grandfather to be his guardian.
In January 2002, the child’s father and mother filed a motion to terminated the guardianship. The court denied the motion.
In October 2004, the father filed a second motion to terminate the guardianship. No hearing was ever held on the father’s motion. However, the court did hear the grandfather’s petition to adopt and the grandfather’s motion to terminate the father’s parental rights.
In 2009, the court denied the father’s motion to terminate the guardianship. He appealed. In 2011, the appellate court reversed and terminated the guardianship of the grandfather.
This meant that the father’s motion to terminate the guardianship was pending for five years before it was heard and two more years went by while the ruling was being appealed.
Although the reasoning of the opinion is somewhat obscure, the judge was reprimanded for failing to dispose of the matter “promptly, efficiently and fairly.”
The court appeared to agree with the findings of the Judicial Conduct Board:
“¶ 14. On March 25, 2013, the Board issued its disposition report. With respect to the 2002 motion to terminate the guardianship, the Board found that, although it could not say with certainty that respondent had made a ruling from the bench on the motion, special counsel had not met her burden of proof by clear and convincing evidence that respondent had failed to rule on father’s motion. The Board acknowledged that a written decision and a clear order would have been preferable, but supported its conclusion by pointing to respondent’s testimony that it was his practice in contentious disputes to explain his ruling from the bench at the end of the hearing; his belief that he denied the motion to revoke the guardianship at the conclusion of the hearing for the reasons outlined in his notes; the three-point summary of issues at the end of the six pages of his handwritten notes from the hearing; the fact that the parties continued visits between the child and her parents under grandfather’s direction, suggesting that they were behaving as if they understood that the motion had been denied; and the fact that father’s 2005 motion did not request that the court resolve the purportedly outstanding 2002 motion but, rather, addressed the changes in father’s circumstances since that time. The Board concluded that “a failure to issue a ruling on the first motion to revoke guardianship albeit only orally, has not been shown by clear and convincing evidence.”
¶ 15. On the second disputed issue, the Board concluded that there was clear and convincing evidence that respondent’s fourteen-month delay in scheduling a hearing on grandfather’s motion to terminate father’s parental rights was serious enough to violate Canon 3(B)(8). The Board found that the fourteen-month delay made matters worse, was not justified by a plan or any legitimate uncertainty about how to proceed, and was especially troublesome given that respondent realized from the outset that the petition had little chance of success because father had remained consistently involved in the child’s life during the guardianship.
¶ 16. Lastly, the Board concluded that special counsel had not established by clear and convincing evidence that respondent failed to dispose of the 2008 remand order from the superior court in a timely manner. The original remand order from the superior court ended up in the probate court file, but was never docketed at the superior court or the probate court. Respondent testified that he had no recollection of seeing the remand order until January 2009, when he got a letter from father’s counsel. The Board concluded that the reason for the delay remained unclear, and that respondent himself or staff in the probate or superior courts may have been responsible for the delay. The Board found, though, that when the delay was brought to respondent’s attention, he scheduled a hearing.”
In sum, an extraordinary case in which a parent-child relationship was disrupted by the failure of the court system to rule promptly on the father’s motion to terminate the guardianship. A short-term guardianship ended up lasting approximately 10 years.
Edward X. Clinton, Jr.