Craven v. McCrillis

Craven v. McCrillis (2004-157); 178 Vt. 476; 868 A.2d 740

2005 VT  22

[Filed 04-Feb-2005]

                                 ENTRY ORDER

                                 2005 VT  22

                      SUPREME COURT DOCKET NO. 2004-157

                             OCTOBER TERM, 2004

  Jesse Craven and Deborah Paradis     }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Orange Family Court
                                       }	
  Charles McCrillis	               }
                                       }	DOCKET NO. 211-12-96 Oedm

                                                Trial Judge: Brian Burgess

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Appellant Deborah Paradis, grandmother of Cheyenne McCrillis,
  appeals from a family court's order dismissing her petition for visitation
  with Cheyenne and denying her motion for relief from judgment.  We affirm
  the family court's decision because Paradis failed to rebut the presumption
  of validity attached to father's decision to deny grandparent visitation. 

       ¶  2.  Cheyenne is the child of defendant Charles McCrillis and his
  ex-wife, Jesse Craven.  The final divorce stipulation and order granted
  Craven sole physical rights and responsibilities and shared legal
  responsibility for the child.  Craven died from an illness in 2003.  After
  Craven's death,  father assumed sole physical and legal rights for the
  child.  Although Paradis had a close relationship with the child, father
  decided not to let her visit with Cheyenne.  

       ¶  3.  Paradis filed an action for grandparent visitation pursuant
  to 15 V.S.A. § 1012.  Her petition alleged that she had a very close
  relationship with the child, father was aware that she did not approve of
  how he had treated Craven, and he had not allowed her or any of Craven's
  family contact with the child.  Father moved to dismiss the petition,
  arguing that Glidden v. Conley, 2003 VT 12, 175 Vt. 111, 820 A.2d 197,
  controlled and required Paradis to rebut the presumption of validity that
  attached to his decision.  Father argued that in order to rebut this
  presumption, Paradis had to offer evidence of parental unfitness or prove
  that substantial harm to the child would occur if the court did not grant
  Paradis visitation, and that she failed to produce such evidence.  The
  court permitted Paradis to present witnesses in order to establish a prima
  facie case and decided to treat father's motion to dismiss as a motion for
  summary judgment.
   
       ¶  4.  At the hearing on her petition, Paradis presented two
  witnesses and testified herself.  Paradis testified to the following: (1)
  the child had witnessed an argument between father and his sister while
  father was intoxicated; (2) the child told her that she did not want to
  live with father; and  (3) father physically abused Cheyenne's mother.  The
  child's aunt testified that at the Tunbridge Fair, the child was unclean
  and appeared more mellow than she had in the past.  The aunt also recalled
  that at one point in time, she heard father threaten to "blister [the
  child's] butt if she didn't be quiet."  The third witness was Craven's best
  friend.  She testified that when she saw Cheyenne at a Fourth of July
  parade, the child indicated that she was "bored" at home because father did
  not allow her to play with people in her neighborhood.  She also testified
  that at one point, the child did not seem as happy on the phone as she had
  in the past. 

       ¶  5.  Based on this testimony, the court concluded that, assuming
  all the testimony presented was true, "it does not constitute sufficient
  evidence to demonstrate that the father is either unfit or that the Court
  should not defer to the presumption that he's acting in the best interest
  of the child, even if we might make a different decision than he made." 
  The court dismissed the petition for grandparent visitation and denied
  Paradis's motion for relief from judgment.  Paradis appealed.

       ¶  6.  Although the court treated father's motion as a motion for
  summary judgment, the  motion was more akin to a motion for judgment as
  matter of law under V.R.C.P. 50 because the trial court took evidence and
  made factual findings.  If evidence exists that may fairly and reasonably
  support all elements of the nonmoving party's claim, judgment as a matter
  of law is improper.  We view the evidence in the light most favorable to
  the nonmoving party, excluding the effects of any modifying evidence.  Gero
  v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000).

       ¶  7.  Paradis argues that father's decision to deny grandparent
  visitation is not entitled to a presumption of validity because father is
  an unfit parent.  In defining what "unfit" means, Paradis argues that she
  is not required to prove that father's behavior met the level of abuse to
  terminate his  parental rights.  Rather, she argues that in determining
  whether father was a fit parent, the court must consider that a custodial
  parent has a legal obligation to foster a relationship with a grandparent
  if it is in the best interests of the child.  Paradis's attorney stated at
  trial that father's behavior does not rise to the level necessary to
  terminate his parental rights or to establish abuse or neglect. 

       ¶  8.  Paradis also argues, in passing, that the court denied her
  the opportunity to present expert testimony.  Her argument on this point
  consists solely of the following sentences: (1) "The Court further declined
  to permit the Grandmother an opportunity to submit expert testimony on the
  issue of harm to the child," and "[t]he trial court . . . denied her the
  opportunity to obtain expert testimony to support a finding of substantial
  harm to the child."  A passing reference constitutes inadequate briefing
  and thus we do not address this issue.  State v. Cameron, 163 Vt. 626, 626,
  658 A.2d 939, 940 (1995); see Johnson v. Johnson, 158 Vt. 160, 164 n. *,
  605 A.2d 857, 859 (1992) (refusing to consider inadequately briefed
  issues).

       ¶  9.  The family court may award visitation rights to a grandparent
  if the court finds that to do so would be in the best interest of the
  child.  15 V.S.A. § 1011(a).  When evaluating the best interest of the
  child, a presumption of validity attaches to the parent's decision
  concerning grandparent visitation.  Glidden, 2003 VT 12, ¶ 21.  To rebut
  this presumption, a grandparent must "provid[e] evidence of compelling
  circumstances to justify judicial interference with the parent's visitation
  decision."  Id.  Circumstances satisfying this high burden include proving
  parental unfitness or that significant harm to the child will result in the
  absence of a visitation order.  Id.  As we explained in Glidden, although a
  grandparent may have a close relationship with the child such that the
  child might benefit from contact with the grandparent, and the parent may
  deny such contact for no good reason, these are not "the kind of compelling
  circumstances contemplated by . . . this decision."  Id.
   
       ¶  10.   In order to establish parental unfitness, the grandparent
  must prove that the parent's actions or the failure to grant grandparent
  visitation will "cause the child significant harm by adversely affecting
  the child's health, safety, or welfare."  Id. (quotations omitted).  This
  standard is similar to the standard for establishing abuse and neglect as
  set forth in 33 V.S.A. § 4912(2): "An 'abused or neglected child' means a
  child whose physical health, psychological growth and development or
  welfare is harmed or is at substantial risk of harm by the acts or
  omissions of his or her parent."  We have set this high standard to
  "minimize[] the risk that a court will substitute its judgment for that of
  the parent simply because the court disagrees with the parent's decision." 
  Glidden, 2003 VT 12, ¶ 21.  

       ¶  11.  Glidden requires Paradis to meet this high standard, which
  she has failed to do.  Paradis failed to present any expert testimony
  proving that father's decision to refuse her visitation with Cheyenne
  creates a substantial risk of harm to the child.  Paradis presented only
  evidence indicating that father may be a "bad" parent.  Courts are not at
  liberty to substitute their judgment for that of a bad parent; we can
  substitute our judgment only for that of an unfit parent.  Presenting
  evidence of a child's boredom, unhappiness, and sometimes unclean condition
  do not amount to evidence that father's actions and decisions are adversely
  affecting the child's health, safety, and welfare.  Even evidence of
  father's one-time threat to hit the child does not rise to the level of
  child abuse sufficient to warrant judicial interference with his
  decision-making.  Moreover, Paradis presented evidence that while father
  was married to Craven, he physically abused her.  However, she failed to
  make the connection between the alleged physical abuse to Craven and how
  that adversely affects the child's health, safety, and welfare today.  

       ¶  12.  On these facts we are not permitted to substitute our
  judgment for that of a fit parent.  Accepting Paradis's facts as true, she
  has not established that father is an unfit parent.  Therefore, we affirm
  the family court's dismissal of Paradis's petition.

       Affirmed.  


                                       BY THE COURT:


                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.) 
                                       Specially Assigned