Vt. R. Fam. Proc. 17
Vt. R. Fam. Proc. 17
Reporter's Notes-2023 Amendment
Vermont Rule for Family Proceedings 17 is amended to update its provisions concurrent with changes to V.R.C.P. 43.1. Rule 17 as originally adopted in 2009 authorized testimony by telephone in family division proceedings. The rule was amended in 2019 concurrent with the adoption of V.R.C.P. 43.1, which addressed appearance by video and audio conference generally. The 2019 revision of V.R.F.P. 17 incorporated V.R.C.P. 43.1 for several types of proceedings in the family division but did not include delinquency proceedings under V.R.F.P. 1 or youthful offender proceedings under V.R.F.P. 1.1.
V.R.F.P. 17(a) is amended to clarify that V.R.C.P. 43.1 applies in parentage proceedings in addition to the existing named proceedings under V.R.F.P. 4 (divorce, annulment, and separation).
V.R.F.P. 17(b) is amended to modify the application of V.R.C.P. 43.1 in juvenile matters. V.R.C.P. 43.1 uses different standards for evidentiary and nonevidentiary proceedings. This distinction is not appropriate for juvenile matters where certain proceedings, although not evidentiary under the definition in V.R.C.P. 43.1, involve important matters. Thus, amended subdivision (b) provides that only status conferences and pretrial conferences incorporate Rule 43.1. Because these are nonevidentiary, they do not require good cause to be remote or hybrid. The method of participation for these hearings may also be determined by a standing order pursuant to 43.1(c)(1)(A). Under the amended language, all other proceedings. including proceedings that are frequently nonevidentiary such as permanency reviews, must be in person unless in response to a motion or on its own initiative the court finds good cause to allow participation by video or audio conference. In addition, the rule specifies that a party's testimony may not be taken by video or audio conference without the party's consent.
V.R.F.P. 17(c) adds a new provision that extends the coverage of V.R.F.P. 17 to include juvenile delinquency and youthful offender proceedings under V.R.F.P. 1 and 1.1. As in subdivision (b), it distinguishes between status conference/pretrial proceedings and all other proceedings. In paragraph (c)(1), status conferences and pretrial proceedings are subject to the provisions of V.R.C.P. 43.1. In paragraph (c)(2), all other proceedings including other nonevidentiary proceedings must be in person unless in response to a motion or on its own initiative the court finds good cause to allow participation by video or audio conference. A further distinction is made for witness testimony at a merits hearing. The testimony must be by video conference and is subject to the requirements of V.R.Cr.P. 26.2 including written notice at least 14 days in advance, V.R.Cr.P. 26.2(c), an express waiver by the youth on the record regarding applicable confrontation rights, V.R.Cr.P. 26.2(d), and the manner in which the video conference testimony must be taken, V.R.Cr.P. 26(d). The application of the pertinent criminal rule to delinquency and youthful offender proceedings is consistent with the general rule in V.R.F.P. 1(a)(1) that the Rules of Criminal Procedure apply to delinquency proceedings unless specifically made not applicable under V.R.F.P. 1(a)(2) or modified under V.R.F.P. 1(a)(3).
V.R.F.P. 17(d), formerly subdivision (c), regarding mental-health proceedings, is amended to provide that hearings for involuntary treatment, continued treatment, and involuntary medication are scheduled as remote proceedings. However, if a party reasonably in advance of a hearing requests, or the court on its own initiative orders, the proceedings will be in-person. The intent of the change is that a request by a party for an in-person proceeding is granted automatically, i.e., the request is not a motion that the court must rule upon. Likewise, the court may, on its own initiative, schedule an in-person hearing.
V.R.F.P. 17(e), formerly subdivision (d), pertaining to minor guardianship proceedings is unchanged.
New subdivision (f) governs hearings in abuse-prevention hearings under V.R.F.P. 9. The rule adopts the identical language governing stalking proceedings under new V.R.C.P. 43.1(k). Both rules provide that proceedings will be hybrid unless upon a party's request or the court's own initiative the court orders participation by a particular method. Although the rule allows the parties to file motions for participation by a particular method, the courts must manage these motions to avoid their use for purposes of harassment, intimidation, or delay. The rule states that a request by a party need not comply with V.R.C.P. 7, governing the content of motions, but must be served pursuant to V.R.C.P. 5. This modification recognizes the need for flexibility in these proceedings.
New subdivision (g) incorporates V.R.C.P. 43.1 into other proceedings in the family division that are not otherwise specifically addressed in the rule.
Reporter's Notes
Rule 17 is added to make clear that a Family Court judge or magistrate in any action or proceeding under the Family Rules may require or permit a witness or party to testify or participate by telephone. The rule is based on former V.R.F.P. 4(g)(1), adopted for proceedings under Rule 4 in 1995 and now abrogated because replaced by the new rule. The purpose of the rule is to provide a uniform practice that meets constitutional standards in all actions or proceedings under the Family Rules. The clause, "except as otherwise provided by statute," has been incorporated in Rules 17(a) and (b) to make clear that statutory provisions giving the court more or less discretion to permit telephonic participation or testimony control. See, e.g., 15B V.S.A. § 316(a), (f).
Rule 17(a)(1) permits the court to require a party or witness to testify or participate by telephone despite the objection of that party or witness only if two factors are present: The court must find that the testimony or participation is necessary and that physical presence is either impossible or substantially burdensome to the state. In addition, the standards of subdivision (b) must be met.
Under Rule 17(a)(2), on motion of a party or its own motion, the court may permit that party or a witness to participate or testify by telephone. The new rule departs from former V.R.F.P. 4(g)(1)(B) by omitting the onerous requirement of that rule that the court find that "exceptional circumstances require" allowance of the testimony. The new rule is also subject to the standards of subdivision (b), however, which as noted below requires other findings before permission may be granted.
Rule 17(b) makes clear that certain conditions must be met before the court may require or permit telephonic participation or testimony. The court must be satisfied as to the identity of the witness and the proper administration of the oath, whether by the court over the telephone or by an officer present with the witness; that adequate opportunity for examination and cross-examination is provided whether a party participates or a witness testifies by telephone; and that the technology is adequate to permit effective communication. In addition, the court must find that there will be a full and fair presentation of the evidence and that no party or witness will be substantially prejudiced by the procedure. Rule 17(b)(4) changes former V.R.F.P. 4(g)(1)(C)(iv) by explicitly providing that "full and fair presentation" includes "assessment of the credibility of any witness"-language intended to make clear that the court can insist on the presence of the witness whenever credibility may be in issue.
Together, these required findings and conditions are intended to assure that an order for telephone participation satisfies the standards of Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), in which the Supreme Court held that due process in noncriminal proceedings requires the importance of the private interest affected by the challenged procedure, the risk of an erroneous deprivation under the challenged procedure, and the effectiveness of any additional procedural safeguards that might be employed to be weighed against the government's functional, fiscal, and administrative interests.
In a number of cases, courts in other states have upheld required telephonic participation under the Mathews standard. See, e.g., In re Juvenile Appeal, 446 A.2d 808 (Conn. 1982) (putative father incarcerated in California could be required to testify and be cross-examined by speaker phone in Connecticut termination of parental rights hearing even though demeanor deemed to be of great importance due to hostility of opposing witness); State ex rel. Juvenile Dep't of Lane County v. Stevens, 786 P.2d 1296 (Or. Ct. App.), review denied, 792 P.2d 104 (Or. 1990) (father required to testify by telephone in termination of parental rights proceeding); Casey v. O'Bannon, 536 F. Supp. 350 (E.D. Pa. 1982) (due process not violated by requirement of telephonic hearing for state public assistance applicants unable to travel to regional hearing sites); Babcock v. Employment Division, 696 P.2d 19 (Or. Ct. App. 1985) (unemployment compensation claimant was not denied due process by telephonic hearing where documentary evidence could be presented by mail in advance and opportunity for crossexamination was afforded); In re Plunkett, 788 P.2d 1090 (Wash. Ct. App. 1990) (prisoner not denied due process in disciplinary hearing where he sat with hearing officer and heard and could have cross-examined witnesses presented by telephone). But see Dey v. Edward G. Smith & Assocs., 719 P.2d 1206 (Idaho 1986) (due process violated where telephonic unemployment compensation hearing was interrupted by either deliberate or inadvertent disconnections). The cases are collected in Annot., 85 A.L.R.4th 476 (1991) (state courts); 88 id. 1094 (1991) (public welfare); 90 id. 532 (1991) (unemployment compensation); 9 A.L.R.5th 451 (1993) (prison discipline).
Telephone participation has been permitted in a number of cases over due process objections. See, e.g., Elson v. State, 633 P.2d 292 (Alaska Ct. App. 1981), aff'd on other grounds, 659 P.2d 1195 (Alaska 1983) (sentence appeal); People v. Williams, 333 N.W.2d 577 (Mich. Ct. App. 1983) (pretrial competency hearing); In re W.J.C., 369 N.W.2d 162 (Wis. Ct. App. 1985) (civil mental health commitment hearing). But see Archem, Inc. v. Simo, 549 N.E.2d 1054 (Ind. Ct. App. 1990) (telephone cross-examination of witness violated due process where testimony in chief had been presented through video deposition).
Rule 17 provides a framework within which the court may determine the appropriateness of requiring or permitting telephone participation on a case-by-case basis, consistent with Mathews and these decisions. The rule assumes that the party opposed to telephone participation has significant substantive interests and a strong procedural interest in a fair and full presentation of the evidence. Accordingly, the rule comes into play only when the state's interests are strong as well. Under Rule 17(a)(1), a party may be required to accept the potentially less effective means of serving those interests only when the state cannot otherwise meet its obligation to resolve the dispute, or cannot do so without bearing substantial burdens. Under Rule 17(a)(2), a party may be permitted to impose those less effective means upon an opponent only when the state's interests are affected by a slightly broader range of "exceptional circumstances."
Rule 17(b) requires the court to balance the remaining Mathews factors--risk of deprivation and effectiveness of additional safeguards--in the circumstances of each case. Clauses (1)-(3) represent safeguards that will assure a full and fair hearing for each party without unduly burdening the state. Clause (4) in effect requires a finding that there is not a substantial risk of deprivation in the circumstances.
Reporter's Notes-2019 Amendment
V. R.F.P. 17, providing for telephonic testimony and participation in the Family Division, is amended by deleting the present text of the rule and promulgating new subdivisions (a)-(d) providing that V.R.C.P. 43.1 applies in family division proceedings other than juvenile proceedings under V.R.F.P. 1, subject to specific provisions for certain statutory mental-health and guardianship proceedings.