Volume 143 — Vermont Reports

<bold>1. Guardian and Ward — Guardian Ad Litem — Appointment</bold> There is no statutory requirement that the probate court appoint a guardian ad litem for an incompetent parent in a proceeding for appointment of a guardian for the minor child of such parent. <cross_reference>14 V.S.A. § 2645</cross_reference>(2).<page_number>Page 63</page_number> <bold>2. Courts — Probate Courts — Procedure</bold> The Vermont Rules of Civil Procedure are not applicable to the probate courts. V.R.C.P. 1. <bold>3. Guardian and Ward — Guardian Ad Litem — Appointment</bold> The appointment of a guardian ad litem is a power inherent in courts in dealing with those appearing before them who are under disability. <bold>4. Judges — Powers and Duties — Generally</bold> It is the duty of the court at all stages of a trial to see that the interests of an incompetent person are fully protected and preserved. <bold>5. Guardian and Ward — Guardian Ad Litem — Appointment</bold> A guardian ad litem must be appointed for an incompetent litigant when fundamental rights are involved, even if the incompetent objects to such an appointment. <bold>6. Constitutional Law — Due Process — Family Matters</bold> Both the right of a parent to custody and the liberty interest of parents and children to relate to one another in the context of the family, free of governmental interference, are rights protected by the due process clause of the Fourteenth Amendment to the United States Constitution. <bold>7. Guardian and Ward — Guardian Ad Litem — Appointment</bold> Where at the time grandparents filed a petition seeking to be appointed guardians of a minor child the child's mother was a patient at the Vermont State Hospital, and the trial court, upon being informed by the mother's counsel that he was unable to communicate with his client because of a deterioration in her mental condition, denied counsel's request that a guardian ad litem be appointed for her, rather than requiring a showing sufficient to enable it to make a judicial determination as to whether the mother was competent to proceed without the appointment of a guardian ad litem, its judgment granting guardianship of the child to the grandparents would be reversed.

<bold>1. Constitutional Law — Miranda Warning — When Necessary</bold> A defendant about to undergo a custodial interrogation must first be told that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. <bold>2. Courts — Decisions — Applicability</bold> Judicial decisions announcing a new rule of law will be given effect to cases pending on direct review. <bold>3. Constitutional Law — Waiver of Rights — Juveniles</bold> Under the Vermont Constitution a juvenile may waive his privilege against self-incrimination and his right to counsel only if the following conditions have been met: (1) he must be given the opportunity to consult with an adult; (2) the adult must be one who is not only genuinely interested in the welfare of the juvenile but completely independent from and disassociated with the prosecution, e.g., a parent, legal guardian, or attorney representing the juvenile; and (3) the independent interested adult must be informed and be aware of the rights guaranteed to the juvenile. Vt. Const. ch. I, art. 10. <bold>4. Constitutional Law — Waiver of Rights — Juveniles</bold> The purpose of the interested adult rule is to guard against improvident waivers of constitutional rights resulting from the minor's lack of sophistication or experience and to guarantee that his decision is as well considered as that of an adult under similar circumstances. Vt. Const. ch. I, art. 10. <bold>5. Constitutional Law — Waiver of Rights — Juveniles</bold> The right to consult with an interested, informed and independent adult before deciding whether to waive or assert the right to counsel and privilege against self-incrimination accrues to a person under the age of eighteen at the commencement of a custodial interrogation simultaneously with the right to be given <italic>Miranda</italic> warnings. Vt. Const. ch. I, art. 10. <bold>6. Constitutional Law — Waiver of Rights — Juveniles</bold> In the case of a juvenile who was found guilty of operating a motor vehicle on a public highway in a careless and negligent manner, incriminating statements made by the juvenile to the investigating officer when no interested, informed and independent adult was present were not erroneously admitted into evidence, since the juvenile<page_number>Page 469</page_number> went to the police station where he made the statements voluntarily, was not under arrest or detention, was at all times during the investigation free to leave, and, therefore, was not "in custody" at the time the incriminating statements were made. Vt. Const. ch. I, art. 10; <cross_reference>23 V.S.A. § 1091</cross_reference>(a).

<bold>1. Negligence — Liability — Generally</bold> Ordinarily a person who is not the owner and is not in control of property is not liable for negligence with respect to such property. <bold>2. Judgments — Summary Judgment — Burden of Proof</bold> A party who moves for summary judgment satisfies his legal burden when he presents at least one legally sufficient defense that would bar plaintiff's claim. V.R.C.P. 56. <bold>3. Negligence — Liability — Defenses</bold> In an action for negligence which arose when plaintiffs fell over a wall onto defendants' parking lot, in which plaintiffs alleged that the wall was "a dangerous and hazardous condition," trial court correctly granted defendants' motion for summary judgment, since the object which caused plaintiffs' fall was located on an adjoining parking lot which defendant neither owned nor controlled. V.R.C.P. 56. <bold>4. Judgments — Summary Judgment — Findings of Fact</bold> Although the term "findings of fact" normally implies a resolution of disputed facts by the trial court after hearing the evidence presented, in a summary judgment context findings would merely include precise statements delineating the facts that exist without substantial controversy. V.R.C.P. 56. <bold>5. Judgments — Summary Judgment — Findings of Fact</bold> Trial courts are urged to include findings with an order granting summary judgment to facilitate appellate review. V.R.C.P. 56.