Miller-Jenkins v. Miller-Jenkins

examining Department “aggravation” their disability. without The word logical legal cita- compensation bases. Without defined under the workers’ precedent or to the tion to this Court’s regulations to mean “an acceleration jurisdictions, claimant’s pre-existing case law of sister of a condition exacerbation persuasive intervening argument little force. has event caused some Compensation and Oc events.” Workers’ Reversed,and remanded. 2.1110,4 § cupational Code Disease Rules 003-1, available at of Vt. Rules http://labor.vermont.gov/?TabId=311. While involving commonly in cases it is used 2010 VT 98 injuries under dif successive-but-related MILLER-JENKINS v. Janet employers, see Pacher v. Fairdale ferent MILLER-JENKINS Farms, 627-28, 43, (1997) (mem.) (outlining distinction [12 768] “aggravation” “recurrence” and No. 09-473 original injury), here its use is less clear, especially given claim the fact that employed ant at all times was and still is employer. difficult for the same It is ap- 2010. Lisa Miller 1. October Com this Court to understand how the modifying peals a court decision deny missioner could claimant benefits rights responsibilities deciding postulating and not one while awarding expartner, way Janet Miller- claimant did in or the other Jenkins, legal custody aggravation sole fact suffer from the of a injury. Accordingly, child, IMJ, work-related we re minor with visitation their rights mand this case for a clarification of both for Lisa to be determined at a later law, spe findings and conclusions of point. argues that the order violates pain cifically, whether claimant’s hand constitutional as her fundamental out in the course of her arose of and biological parent IMJ’s several employment, not caus how was or was of the court’s factual ally shoveling, related to her snow of law warrant reversal. We conclusions related, shoveling was a nor affirm, proceed- further and we also order activity daily living.2 mal ings occur at the time of the transfer of Finally, 11. we note that claimant’s argument that the erred in Commissioner ¶ Many background of the facts of consistently Depart- failing apply this case are recounted this Court’s internally developed case law ment’s own in Miller-Jenkins v. Miller-Jenkins decision daily living regarding normal activities of (Mi I), VT ller-Jenkins assumptions. Primar- rests on unresolved They briefly 912 A.2d 951. can be ily, it assumes that this Court is or would summarized as follows. Lisa governed by Department’s own a civil union in Vermont De obtained analysis, merely legal much of cites which union, 2000. Soon after the civil cember gener- Department to earlier cases or to parties to have a child decided Additionally, ally phrased legal treatises. insemination, whereby through artificial simply it assumes that this Court would bearing mother. The Lisa would be the adopt legal tests and conclusions of parties, working together, sperm chose a donor, present in the de and Janet was livery April opinion was born in on the basis or room when IMJ We state no Lisa, Janet, applicability and IMJ lived Vir- of this standard. gima until 2002 when moved court issued of fact and They together to Vermont. raised IMJ conclusions of law. In accordance with 15 life, the first seventeen months 665(b), V.S.A. the court considered each couple separated. Sep- and then the statutory of the nine factors for determin- helped tember Lisa move ing parental responsibilities Virginia back to while Janet regard Though many to IMJ. remained in Vermont. weighed evenly par- factors between the ¶ pro 3. In November Lisa filed a ties, the court found that had the Janet complaint family se the Vermont court positive relationship to foster a parties’ to dissolve the union. The civil Lisa, with while Lisa demonstrated family temporary court issued order on through “contemptuous refusal to 17, 2004, awarding temporary June Lisa permit parent-child contact” that legal physical responsibility and for IMJ. relationship. could not foster such a The court also set a visitation schedule for court, however, poten- concluded that the Janet, mandating daily in addition to tele- uprooting tial harm that could result from phone contact between Janet and IMJ. outweighed potential the harm from Lisa, however, parent-child allowed Janet inability relationship Lisa’s to foster a contact once June 2004 and did not with Janet. The court therefore ordered any telephone allow Janet to have contact physical legal custody sole of IMJ to September with IMJ. On the Lisa, go subject to to Janet’s visitation family Vermont court found Lisa in con- rights. The court also ordered tempt the civil comply for willful refusal to with union to be dissolved and assets to the court’s June 2004 visitation order. time, ¶ distributed. At sought interlocutory appeal 4. Lisa warned Lisa that continued interference three orders Vermont court: (1) between IMJ and allowing the June 2004 order Janet (2) change Janet could lead to a of circum- rights; September visitation warranting stances a modification of cus- finding contempt order Lisa in for refus tody. order; with the visitation (3) ¶ again appealed the November 2004 order 6. Lisa parental Court, that both Lisa and Janet have arguing, court’s order to this thoroughly among things, interests in awarding any IMJ. After other exam ining issues, parent-child all of these this Court af contact to Janet violated Li- firmed all orders rights the lower court. sa’s constitutional as IMJ’s sole I, Miller-Jenkins biological parent. three-justice entry 2006 VT 72. We In a (1) order, parties’ concluded that civil union we declined to address most of (2) valid; juris was arguments, court had already since had (3) union; diction to dissolve the civil been resolved this Court’s decision in jurisdiction I. court had Miller-Jenkins to award See Miller-Jenkins v. (Miller-Jenkins (4) IMJ; II), Janet visitation with Miller-Jenkins No. (Vt. recognize 2007-271, court was not **1-2 WL at Virginia 2008) mem.), (unpub. enforce a trial court decision Mar. Term available denying parentage http://www.vermontjudiciary.org/d- Janet claims of IMJ; sup upeo/upeo.aspx. visitation of the record noted that We because no ported the conclusion that Lisa inwas new evidence or facts were adduced at trial, contempt willfully violating of court for there no need to revisit those temporary same issues. Id. at *1. the June 2004 visitation order. Id. 7. In the modification order 2007, following currently appeal, 5. In June trial on parental responsibilities, following findings the made the of fact with respect for ten months. Lisa had interfered and Janet’s to Lisa eight weeks of court-ordered visita- parent-child contact between Janet over years, The court tion between IMJ and Janet. In recent court-ordered and IMJ. parent-child found that Lisa’s intention was to contact between Janet and also infrequently all contact be- at best. terminate IMJ has occurred light of these has violated several visi- tween Janet IMJ. Since findings, during years, that Lisa’s these the court concluded tation orders visitation contempt willful interference Janet’s her in court has found substantial, real, rights amounted to a violating times for court a total of seven unanticipated change in circum- parent-child contact orders. numerous analyzing stances. After how IMJ’s inter- Throughout 2008 and Janet and served, best the court ests would be parent-child contact for a total of IMJ had awarded Janet sole approximately During hours. appealed to of IMJ. Lisa years, trips to two Janet made several Court.2 Virginia to visit IMJ accord with the schedule, arguments in but 9. Lisa makes three court-ordered visitation Further, reversing Lisa did not allow contact. awarding stop mother and father to decision One ar- asked Janet’s contacting stop referring gument challenge is a broad-based IMJ and to “Pop- themselves as “Mom-mom” and various of fact and conclusions of pop” in front It also found that made court. Lisa also of IMJ. law parents Virginia specific argu- constitutional Janet’s live near IMJ makes two and have seen IMJ four times 2008 ments: that a transfer of January hearing, At a violates her fundamental and 2009. biological again explicitly warned Lisa that as the sole IMJ; comply family court- that court de- continued failure to the custody prived process ordered visits could lead to a transfer of Lisa of due custody to Janet. The court noted that transfer. that she would Lisa then testified I. visits, although with the ordered she now challenges finding.1 ¶ Because of the this challenges firstWe address Lisa’s contact, lack of Janet filed family findings to the court’s of fact and two to transfer consecutive motions cus- legal argues that conclusions. Lisa tody to herself. The first motion was custody transfer of is IMJ’s best denied, and a on the second mo- matter, interests. As an initial we raise 21,2009. August tion held on Lisa did principles guide of law that this two Court testify hearing. appear not at that appeals when we address court ¶ First, by repeating it 8. The court noted the matters. bears hearing, in time of the 2009 Lisa had court’s sole focus a noncompliant been with visitation orders 2 disap Janet now claims that Lisa has 1 peared points not actu to Lisa’s We need reach whether Lisa IMJ. Janet is, ally attorneys’ represen point, testified on this as she of motion to withdraw course, obligated obey evidencing disappearance. court orders tation as this motion, attorneys regardless of whether she said she would. In the stated incorrect, they if Lisa and Even unessential are were unable reach grounds Greenberg spoken for reversal. v. had not to her since the contested Hadwen, 112, 115, 916, issued, though they appeared A.2d 145 Vt. 484 order was (1984). argument. at oral 918

521 (1999)(mem.). 548, If dispute must be the of the 742A.2d best interests See, sup e.g., Begins Begins, and credible v. 168 Vt. reasonable evidence child. (1998). 301, 469, findings, they 298, ports Id. 721 Al- will stand. A.2d such though parents are the ones who Reversal is warranted the court’s supported by appear the evi before the court in are “easy dispute, and it to be- if its conclusions are is therefore dence or by caught up findings. v. and inter- Cloutier come their welfare,” 961, Blowers, rather than the child's 783 A.2d ests (2001). Price, 125, 118, v. 541 A.2d Price 149Vt. 79, (1987), must not court two-pronged proce follow a 13. We competing, into take consideration the determining dure transfer of parents antagonistic, desires of the Pill, 642, often Pill v. 154Vt. upsetting without the delicate nature of (1990). First, moving party must custody proceedings trivializing the real, substantial, show a and unantici determining of the child. In what welfare pated change of Sec circumstances. Id. in the best interests of a it is is ond, changed finding after a necessary appropriate and look at the circumstances, deter court past parents’ actions to determine the best of the mines whether interests they by abide will be able to change cus child will be served visitation and other whatever schedules agree tody. Id. We court’s requirements are in the court determines conclusion, challenge, which Lisa does not the child’s best interests. noncompli her willful calculated change principle qualifying 11. The second ance resulted is deferential court Court find circumstances. ings of fact. In the face motion to of a 14. This then modify parental rights, the court analysis court into an to delve has broad discretion to determine the best interests. Guided the factors interests of the v. best child. Sundstrom 665(b), in 15 V.S.A. listed Sundstrom, 106, ¶37, 2004 VT change parental whether a examined (mem.). 865 A.2d responsibilities was in inter- IMJ’s best unique position trier of fact as many ests. The concluded that allows alone to witness’ evaluate the weighed evenly the factors between the credibility weight and the that evidence parents, two as did in June making should afforded in this assess when trial court issued its earlier ¶2, Kasser, Kasser v. VT ment. ruling. Two factors highly 179Vt. 895 A.2d 134. In fact- parents cooperate to communicate and situations, intensive such as de responsibilities where terminations, appellate we as an divided, as well shared as evidence “place substantial determina reliance on weight bore no of abuse in the court’s credibility of fact tions made weighed factor decision. One favor Ovitt, family court.” 2007 VT Velardo adjustment present Lisa: IMJ’s to her ¶ 18, 182 school, housing, community, result, might change 12. As a when Court re- transfer findings, factual fa- views we view them create. Three factors were in Janet’s (1) light prevailing relationship most favorable to the vor: Janet could foster a continuing Lisa; party excluding below the effect of' contact with Ja- evidence, seeing modifying factual net not block will set aside would IMJ from family; findings only “clearly superior erro- Janet found to be Lisa’s had IMJ, Stickney especially given Stickney, guide Li- neous.” ability to communicate noncompliance demonstrated an with orders that sa’s cooperate with Lisa. The best inter- court deemed to be IMJ’s court, however, found that Janet made first two of The court noted that the ests. trips Virginia “heavily” to have weighed numerous factors Janet’s parent-child contact court-ordered favor. that, not occur and since least family court concluded that 15. The parenting engaged in enmeshed Lisa has change long-term benefits of the whereby an alliance with she has fostered outweigh short-term would that Janet. Janet testified IMJ Citing Squires, disruptions Bell v. to IMJ. Thus, animosity toward Lisa. she had no reiterated that a child’s best the court finding court’s that Janet by “plainly nur interests are furthered cooperate communicate and would turing relationship with both the child’s amply supported the evidence. Lisa is parents, and a sustained course of con Next, assigns parent designed error to the to interfere 18. Lisa duct one finding the other court’s Janet indicated in the child’s willingness respect religious upon Lisa’s casts serious doubt the fitness offending party par Specifically, to be the custodial and moral instruction of IMJ. ¶ 18, points testimony ent.” 2003 VT that she Lisa to Janet’s omitted). (mem.) (quotation A.2d 1019 bring not to a church that would IMJ change in concluded that the The court bigotry.” did teaches “hatred and Janet ultimately would the best anyone say prevent she would Lisa or IMJ, have the interests of as she would taking any particular from IMJ to else opportunity to maintain church, although Janet would parents. emotional contact with both church with like to be able to attend ¶ 16. Lisa’s first claim of error is the personally take to a she would IMJ finding that Janet would court’s promotes church that such beliefs. Janet good Lisa foster a between Baptist further that a church was testified argues and IMJ. Lisa that Janet has been acceptable, knew at- Lisa, openly that when IMJ hostile to torney Baptist attended a church and Janet, Lisa could not reach IMJ or visited would allow to attend with her.3 IMJ Janet, however, by telephone. tes- that she would involve Janet also testified tified, found, and the programs at church. children’s repeatedly Lisa has refused to testimony supports Janet’s with court-ordered contact respect finding that Janet would further between IMJ Janet. Janet religious and moral instruction of testified that she would never block Lisa’s IMJ. visitation time or communication between Fourth, that it was fact, stated that Lisa and IMJ. clearly family court to erroneous for the she would allow liberal contact between find no abuse of IMJ Janet.4 The bought Lisa and IMJ and had even such webcam to facilitate contact when- attorneys present Two were at the Au finding ever IMJ was with Janet. The gust on behalf of IMJ. One Janet would foster a Baptist attends a church in Ver of them supported by. Lisa and IMJ is attorney mont. Janet testified that IMJ’s finding is the evidence on the record. This bring church. could her to the erroneous, clearly and we therefore will not overturn it. an affidavit to the submitted Second, unsubstanti Lisa contends that the court that contained several alleging statements abuse. The affi- trial court erred in that Janet had ated family rejected justify explicitly could some alienation be- reasonably suspected when it held that had never claims cause abuse. (1998). by parent. Finding been abused either Renaud, family In there had been no abuse the child’s mother consulted parent, assign therapists pediatrician either the court did not with two and a any weight abuse, making allegations to this factor in its consider- before did family appear “acting ation. The court’s earlier decision to be out of malice or similarly prof- spite,” “transitory, in June 2007 found Lisa’s and her actions were alleged unlikely subject repeated, fered evidence of Janet’s abusive to be and justifiable. behaviors not credible. Lisa’s brief before cure” and were thus 168Vt. at contrast, By this Court now launches several addi- 721 A.2d at 467-68. accusations, unsupported justify tional which in this ease Lisa did not her inter- presented were either never to the ference Janet’s visitation with cred- rejected by abuse, or were that court as ible evidence of nor did alien- speculative ating transitory appear and unsubstantiated. We find behavior to be subject any no reason to disturb the court’s to cure. Without reasonable point. on this abuse, suspicion of Lisa’s interference parent-child assignment 20. Lisa’s next of error is courfiordered contact justified. court's that Lisa had no was not justification denying parent-child for con- Regarding proffered the second tact with Janet. The how- (the justification claim that Janet’s sexual ever, “non-compli- stated that Lisa’s negatively orientation affected IMJ’s calculated, ance . . . has been willful health), argu- court cut off this contempt and the Court has found her in noting ment that Janet spe- which numerous orders set forth legal parent is a of IMJ and that her parent-child cific dates and locations for judge sexual orientation is irrelevant. The contact between [Janet] IMJ. There correctly stated that this “issue has never justification no [Lisa]’s is interference case, presented been and I don’t rights.” with [Janet]’s visitation point see reason at this that it needs states that the reasons she has denied presented to be now.” The State of Ver- contact were twofold: mont has determined same-sex alleged following behavior visits couples respon- have the same abuse; with Janet — was indicative of opposite-sex thus, couples sibilities as negatively Janet’s sexual orientation af- parents the sexual orientation of the is alleged justifi- fected IMJ’s health. Both irrelevant in a determination. See cations are meritless. (“Parties 1204(a) § 15 V.S.A. civil Regarding proffered jus- benefits, the first union shall have all the same (the tification claim that protections, responsibilities IMJ’s behavior under law, statute, after visits with they Janet was indicative of derive from abuse), earlier, rule, as discussed policy, administrative or court com- correctly allegations law, law, found the of mon other source of civil wholly again, abuse to be granted spouses unfounded as are a civil mar- weigh did not riage.”). this factor either affirm We court’s find- parent. justification This case is not a situation like that Lisa had no for de- Renaud v. nying that which we addressed visitation to Janet. Renaud, where we held that the custodial argues 23. Lisa also applying court erred in the factors set davit, however, 665(b) consequently was not admissible evi- forth erred awarding custody dence. to Janet. must We uphold for the court’s conclusion court’s conclusions un- with earlier find- that her refusal to are not less Cloutier, fitness as the ings. A.2d at court orders diminished her 172Vt. at argument parent. mis- custodial This contends that the court erred 963. Lisa placed. analyzing parent’s concluding each and IMJ have a love, affection, guidance provide good relationship. She Wells, quoted expert the court Wells who testified on behalf of Janet deliberately “[t]o we noted that that IMJ and Janet have a where to the effect testimony sabotage calculated to based her visitation “pure speculation.” expert the best interests of children bears testi- serve adversely parent-child bonding and attach- on the fitness of the custodial fied that certainly place parent, ment takes between birth two whose conduct most years age. expert go The concluded that unnoticed the children.” does not 1, 4, and formed an attachment in 150 Vt. 549 A2d early years, omitted). that emotional IMJ’s bond (quotation court con- likely disappear. not would not Lisa does contemptuous cluded that Lisa’s behavior span that contend time ability negatively provide bore on her to expert and reviewed Janet’s IMJ’s ability guidance to not on her relationship from to seventeen birth food, provide clothing, or shelter. The use Rather, age improper. months of was negate of the word “fitness” does urges expert she that because the did not conclusion. any observe interaction between IMJ and ¶ Ultimately, court deter away, moved she could Janet before IMJ in mined that it is the best interests of testify any bonding as to between the custody This IMJ to be of Janet. .however, two. The found determination was that both Lisa and Janet cared for IMJ findings, and court’s we conclude extensively infancy beyond there is no basis to disturb it. The best disposition that both have the paramount interests of the child remain provide her with love and affection. decisions, custody in all and a decision to findings, expert These combined with the custody transfer cannot be based on a testimony, support court’s con- punish alienating parent. desire to clusion that Janet has a Renaud, at 721 A.2d at See with IMJ.6 said, 466. That a child thrives when he or challenging 24. In of both has love conclusions, Lisa states that no court has parents. parent’s hamper attempts One parent. an ever found her to be unfit parent-child relationship the other’s court found that Lisa Because typically therefore demonstrates lack of food, capable providing adequate was regal’d for the child’s best interests care, clothing, medical and a safe environ- suggests custody may that a transfer of ment, Lisa contends that there is no well be in the child’s best interests. See id.; also, e.g., Meyer Meyer, see v. 173Vt. said, today That 924-25 our decision takes into 789 A.2d prolonged (upholding account the fact that trial court’s decision to trans mother, separation part, an from Janet calls for addi fer because hearing tional to reevaluate that relation extensive evidence established father’s at mother); ship tempts and ensure that the transfer of cus to alienate children from Wells, tody 549 A.2d at 1042. is done the manner is most Vt. Further, to the interests of IMJ. court’s decision to conducive best solely infra, part See III. transfer was based Janet; perform Lisa’s alienation of IMJ from some minimal constitutional analysis transferring custody. before Cit- also based on Lisa’s alienation of IMJ Supreme the United States Court parents, from Janet’s which the court Granville, v. decision Troxel 530 U.S. deemed to be IMJ’s best inter- (2000), specific pro- Lisa contends that 665(b)(7)(noting ests. See 15V.S.A. cedures are before a transfer of one factor that must be considered place can take and that her cus- determining best interests of child re- is preference todial should be awarded lationship any person of child with other special weight.” “some child). may significantly who affect the Except in the limited sense dis reasons, For these we find no basis to paragraph infra, cussed in we do not overturn the court’s of fact or arguments reach these because none of regarding conclusions of law the decision properly preserved them were before the to transfer preserve trial court. Failure to issues ¶26. We are aware of the national waiver, below results even of constitu gained, attention that this case has Hinchliffe, tional issues. State 2009VT potential parties proceed- to these 111, 31, 186 A.2d 988. Issues ings to be influenced matters not be- specificity clarity, not raised with way fore this in a Court is not gives in a manner which the trial court a conducive to the best interests them, opportunity fair to rale on are also might child. While Lisa believe that all of Corp., waived. State v. Ben-Mont (1994). Here, her actions have been done out of concern interests, opposition for IMJ’s best we conclude that Lisa filed no to the motion to disappearing ap- custody, result, a mother with a transfer as a parently order, to defeat a lawful court court order did not address destructive to regarding the best interests of that constitutional matters parental rights biological child. The evidence before the as IMJ’s sole supports process the conclusion that Janet nor due concerns. acting has been with IMJ’s best interests Lisa contends that an affidavitintroduced throughout proceedings in mind at the end of the will, preserved and that a transfer of arguments her constitutional ran, long provide by including subheading benefit IMJ and her a bold about how loving with a and stable home with access a transfer of ‘Would Li Violate contrast, parents. By to of Rights both her sa’s Fundamental as [IMJ’s] Mother,” Biological evidence reveals that Lisa has stating demon- contempt following: strated both for the courts of jurisdiction and for the reasoned laws Court, I realize this and the passed by Legislature. our Court, Supreme Vermont have II. argue heard me before that it my parental rights would violate ¶27. Turning to Lisa’s constitutional to either declare Janet a de facto claims, argues Lisa court parent grant [IMJ] to or to parental rights violated her fundamental beg I visitation. this Court to when transferred to Janet. consider the even more serious Lisa contends that a transfer of implications constitutional of ac- nonbiologieal, nonadoptive parent to a tually taking away [IMJ] from parental rights violates her fundamental biological parent. her biological parent as the sole of IMJ. She ¶ process rights whatsoever, Nothing also that her due 29. further factual, were violated when the court failed was offered in of this 526 claims, except in circum “limited tional purported assertion of constitutional i.e., stances, appellant ap an raises a hearing, when rights. Lisa did not At the deprivation fundamental by telephone, pear person and her claim Florindo, 11, v. rights.” Follo 2009 VT attorney no intima at the made 1230; ¶ 16, arguments 970 A.2d see also 185 Vt. now tion of the constitutional Varnum, Varnum, v. attorney 586 appeal. did her forth on Nor set (finding any balance any A.2d or elicit testi introduce evidence litigant’s rights mony provide fundamental the trial court with between to lengthy process im to rule on such constitutional basis avoidance of hearing, grounds.6 Following well-being tipped Lisa’s pacting children’s attorney proposed case). submitted In favor of limited review conclusions; nowhere in that fact and grant we limited the situations where attorney document did Lisa’s make review, has we ask there Further, arguments. con jus constitutional miscarriage of been a “fundamental Varnum, stitutional matters cannot overlook.” tice that we conspicu and conclusions A.2d at 1111. In 155 Vt. at absent, likely ously because the was “weighty particular, we must consider the at issue. See not informed that were children.” Id. countervailing interests of Farnam,

Malinowski Here, no fundamental 32. we find (2002) (mem.) (support justice. miscarriage of The trial court preclude decision to mother’s consti a careful examination of the underwent argument appeal on with the fact tutional and focused its circumstances of this case never ruled on the that “the analysis on the best interests of IMJ. Lisa likely presented appeal, because issues attempts to draw distinction thought they judge never were before rights biological parent as the sole her him”). of Janet. Miller- In IMJ and the Thus, excerpt I, the brief cited above 30. explicitly that no such Jenkins we held only attempt from Lisa’s affidavit was the and that Janet was a distinction exists identify constitutional concerns to the legal parent of IMJ and was entitled to all specificity trial and it lacked the parental rights flowing therefrom. 2006 preserve ¶¶ case, that is constitutional 55-61. In that Lisa simi- VT claims. Lisa’s affidavit refers to “se- larly argued under the United implications,” and rious constitutional Supreme States Court’s decision explain nothing the nature Troxel, awarding does more to Janet visitation analogous In circum- of those concerns. without first that Lisa was unfit stances, previously we have held that the fundamental was a violation Lisa’s warning pretrial mere mention of fair right parent Although child. enough preserve motion was not a due argument unpreserved, we nonethe- Ben-Mont, process appeal. claim on rejected it. Id. less addressed and For these (“Janet Vt. at was awarded visitation because reasons, preserve failed to her con- she is a of IMJ. Lisa’s exclusive.”).7 stitutional claims. rights are not For similar cases, generally this Court civil unpreserved does not review constitu- argument Lisa made the same under Troxel time before this Court in second II, counsel con Miller-Jenkins argument, where we declined At oral previ the issue because it was ceded that trial counsel did not raise address in Miller-Jenkins I. ously issues at the resolved constitutional appealed hearing. both of this Court’s decisions to reasons, arguments IMJ, Lisa’s current fare no Lisa with if feasible. all of these matters, better, keep the court will continue to we find no fundamental mis- paramount. IMJ’s best justice interests carriage warranting reversal. III. Affirmed, with directions to hold a hearing at the time transfer of affirm 33. We court’s order to transfer from Lisa to Janet. Skoglund, J., concurring. As a are, however, We no under delusions that parent’s deny result of one efforts to custody simple a transfer of under even another contact with their the best of circumstances. We are mindful the time of the trial court’s decision Janet passed of the fact that much time has essentially Jenkins had not seen her then spent significant since Janet and IMJ a year daughter seven old for over two together. amount of time areWe also years. judge acknowledged The trial aware that the court found that repeated Lisa Miller’s interference with estrangement. Lisa is the cause of this As Janet’s visitation had reached below, reflected court should point longer part [Janet] “where is no great hearing have discretion at daughter’s life.” The also noted called for in the mandate of this order to already its June 2007 order that it had relationship reevaluate Janet’s with IMJ relationship found the between the child at that time and ensure a transition that significantly and Janet had been affected comports with the law’s intent to defend Lisa’s refusal to allow protect IMJ’s best interests. Cf. In re contact. The court concluded 2009 that Stacks, (Ala. 406 So. 2d 980-81 Civ. “[t]his situation has become worse 1981) App. (holding that where child was so, since that time.” Even grandmother in care of for much of his majority both conclude that Janet life, delaying trial court was correct in “has a with IMJ” for permanent transfer of to child’s purposes analysis of a best-interest mother to allow child to become reac- 665(b). Ante, under 15V.S.A. 23. Given quainted “prevent with her and to length of time in this child’sshort life removal”). abrupt trauma to him of an without real with her ¶34. mother, Because this Court Janet, desires to I cannot find for minimize further trauma to Blowers, we this conclusion. Cloutier v. anticipate her 450, 452, 783 best interests 961, 963(2001)(‘We will be met Vt. only by way specific plan of a ensure will... reverse the court’s successful and safe transition. We there- supported by evidence, ifor its fore direct at the time that IMJ is supported by conclusions are not the find (citations located and the omitted)). transfer of ings.” oc- While I concur curs, court shall hold a majority’s especially decision hearing to reevaluate Janet’s current re- light the Court man lationship plan with IMJ and establish dates to reevaluate Janet’s the transfer of transitioning custody with IMJ before Janet; set a visitation schedule for highlight necessary I write to incon sistency ruling. Court, Supreme the United pertinent States which 36. The in this case declined to hear either case. 550 prevented U.S. 918 are uncontested. Lisa has Ja- (2007) (mem.) (denying seeing for, certiorari daughter net from their I); now, Miller-Jenkins past years. 555 U.S. S. Ct. three (2008) (mem.) (denying certiorari in twenty- court found that Janet had had II). Miller-Jenkins four hours of contact with IMJ in all of www.ncjrs.gov/pdffilesl/ojjdp/229933.pdf. only twenty-four again hours 2008 and longer impacts the last far than search Its Indeed, find from the missing espe- recovery of a for and ings, appears apart these two from it cially in both a child whose trust for visits, not had contact with her Janet has seriously parents may dam- have been daughter and had since (“Tomany parents, aged. the id. at 37 See The court before then. limited contact recovery might of seem like a moment good has a relation concluded that Janet celebration, child, may feel but to the by viewing daughter the ship (citation omit- like another abduction.” perspective of the evidence “from ted)). strong Simply had a because Janet preceding initial termination [Lisa]’s time daughter with her before we have contact.” While estrangement, current inquiry held that the best-interests that such a bond still cannot assume periods on all relevant should focus exists. exclusively on the child’s life and majority’s result 38.1 concur trial, immediately preceding period because exclusion of this factor would Nickerson, Nickerson v. conclu- shift the court’s ultimate (1992) (“A contrary A.2d sion. holding may primary-care- cause a provider wishing to leave the home uproot children from the marital resi 2010 VT 100 remain, solely view of the dence BOMBARD, Jr. v. John primary-eare-provider.”), sug I DEPARTMENT OF LABOR gest illogical potentially harmful it is (Fisher Parts, Inc., Employer) Auto ignore reality simply of this child’s [12 533] experience. I do not understand how court can draw conclusions about No. 09-380 a mother current daughter have not and her when the two spent significant together time for more —years large portion than two ap- 1. November 2010. Claimant daughter’s life. peals request the denial of his for unem- lightly 37.1 do not note this inconsis- ployment appeal, benefits. On claimant recognized past, tency. As we have environment that the hostile work family court should not construe the job provided good quit, at his cause 665(b) application best-interest that the Board’s conclusion otherwise gives in a incentive factors manner findings. We dis- See, e.g., wrongdoing parent. id. agree, for affirm. said, ignore cannot That we likewise can 2. The facts found the Board relationships plight of children whose as follows. Claimant be summarized significantly disrupted Parts, distorted employer and/or Fisher Auto worked prevent chooses to an- quit when one until Inc. for nineteen months he kidnapping began May other from contact. Parental 2009. His work tenure at store, employer’s Burlington most common form of abduction where his is the 200,000 temper, manager than had a volatile at times the United States with more throwing During year. around the store. of Juve- items children victims each Office Prevention, angry episode, manager Delinquency one used nile Justice & Justice, language profane threatening Dep’t to- The Crime Fam- U.S. reported ily claimant. A and Parent’s wards Claimant Abduction: Child’s manager, (2010), http:// regional who Perspective behavior to the iii-iv available

Case Details

Case Name: Miller-Jenkins v. Miller-Jenkins

Court Name: Supreme Court of Vermont

Date Published: Oct 29, 2010

Citation: 12 A.3d 768

Docket Number: 09-473

Court Abbreviation: Vt.