In Re Guardianship of Emily Bacher (Gregory Bacher)

VERMONT SUPREME COURT Case No. 24-AP-287
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

MARCH TERM, 2025

In re Guardianship of Emily Bacher } APPEALED FROM:
(Gregory Bacher*) }
} Superior Court, Rutland Unit,
} Probate Division
} CASE NO. 24-PR-05668
Trial Judge: Karl C. Anderson

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

This case involves a petition filed with the probate division to appoint a custodial
guardian for minor Emily Bacher by her uncle. The probate division granted the request, finding
that minor was without proper parental care, that uncle was a suitable guardian, and that the
guardianship was in minor’s best interest. On appeal, minor’s father argues that the evidence
does not support the findings, the court erred in not directly addressing his motion to dismiss,
and the appointed guardian ad litem had insufficient time to assess parents’ suitability prior to
the hearing. We affirm.

The record reveals the following. Uncle sought an order under 14 V.S.A. § 2623
appointing him as the custodial guardian of minor, born in February 2010. The petition alleged
that in the parents’ care minor was not provided with nutritional food, had no regular routine,
was allowed unrestricted and unsupervised access to the internet, engaged in self-harm,
culminating in an attempt to take her life, was admitted to the hospital, and had missed thirty-
four out of forty days of school. Minor’s mother consented to the petition, but her father did not.
Minor is over fourteen years old and indicated that her uncle was her choice of guardian. See 14
V.S.A. § 2650 (providing that minor over fourteen “may choose their guardians, subject to the
approval of the Probate Division”). The court held a hearing on the matter. The court made oral
findings on the record that minor was doing well with her aunt and uncle and that it was in her
best interests to stay with her aunt and uncle and have visits with parents if she was agreeable. In
a subsequent written order, the court concluded that minor was in need of guardianship in that
she was without proper parental care, subsistence, education, medical or other care necessary for
her wellbeing, uncle was a suitable guardian, and the guardianship was in minor’s best interests.
It therefore granted the petition.
On appeal, father argues that the evidence does not support the court’s findings that
minor was without proper care. We apply a deferential standard of review to the findings of the
probate division and will not reverse “unless [those findings] are clearly erroneous.” In re
K.M.M., 2011 VT 30, ¶ 14, 189 Vt. 372. Even if contrary evidence exists, we uphold the trial
court’s findings “if they are supported by credible evidence.” Id.

Here, there was sufficient evidence to support the court’s finding. The minor’s counselor
testified concerning minor’s record of missing school, history of self-harm, attempt to take her
own life, residential treatment, and the recommendation that minor not return to her mother and
father after leaving the Brattleboro Retreat. The counselor stated that minor lacked healthy food
and meals at home and parents had not responded to her mental-health concerns. The counselor
further testified that minor was making improvements since living with her aunt and uncle; she
was attending school regularly, investing in clubs at school, and experiencing improved mental
health. Uncle testified that in parents’ care minor was not attending school, was being bullied,
and was engaged in unsafe behavior such as cutting. He indicated that since coming to stay with
him, minor refused to go home and felt a lot of anxiety when she did go to visit. He testified that
he had known minor for years, minor previously accompanied his family on vacations, their
household was stable with consistent rules, minor had a good relationship with her nephew and
other family members who lived nearby, and he encouraged contact with parents. He testified
that he was able and willing to provide necessities for minor such as food and healthcare. The
court did not abuse its discretion in crediting this testimony and granting the petition. Although
father had a different view of the situation, the credibility of the witnesses and weight of the
evidence is to be determined by the trial court, and we will not reexamine the evidence on
appeal. See Kanaan v. Kanaan, 163 Vt. 402, 405 (1995). The evidence supports the court’s
findings and there are no grounds to disturb them on appeal.

Father next argues that the court failed to rule on a motion to dismiss that he filed before
the hearing. The motion responded to the factual allegations in the guardianship petition and
requested that the court obtain disciplinary records from uncle’s employer and that if minor was
not ready to return home that the court appoint an alternative placement to uncle. Although the
court did not directly address father’s motion at the hearing, the court’s decision to grant the
guardianship implicitly indicates that it did not credit father’s allegations and that it denied the
motion. “When reviewing a trial court’s factual findings, we view them in the light most
favorable to the prevailing party below, disregarding the effect of any modifying evidence, and
we will not set aside the findings unless they are clearly erroneous.” Solsaa v. Solsaa, 2008 VT
138, ¶ 6, 185 Vt. 587 (mem.). As explained above, the evidence supports the court’s findings
that minor lacked proper parental care and that her uncle was a suitable guardian. Therefore, the
court did not err in denying the motion to dismiss.

Father’s final argument concerns the guardian ad litem (GAL) that the court appointed
for minor several days prior to the hearing. See 14 V.S.A. § 2625(e) (authorizing appointment of
guardian ad litem); V.R.P.P. 18(c) (requiring court to appoint guardian ad litem for minor).
Father contends that this was in error because the GAL had insufficient time to speak with father
or visit parents’ home before the hearing. Father fails to demonstrate how the late appointment
resulted in error. At the hearing, the GAL acknowledged that she had not yet visited either
household and she made no statement regarding the conditions of parents’ home. She explained
that she had spoken with minor’s aunt and minor, and based on these conversations, the GAL
indicated that minor was thriving with her aunt and uncle and she therefore supported the
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guardianship. Given that the court did not rely on the GAL’s opinion regarding parent’s home or
minor’s situation there, father has failed to demonstrate how the late appointment resulted in
error.

Affirmed.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

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