Wednesday, January 30, 2013

Home Sweet Home State



In re C.P., 2012 VT 100.

Perhaps one of the most sensitive and human questions of law the legal system must address is whether to terminate rights of parents to their children.  The ability of parents to make decisions about the upbringing of their children is a fundamental right that the United States Supreme Court believes is protected under our federal Constitution.  The decision to revoke that right is thus not one that can be taken lightly.

The sad fact is, occasionally the biological urge of our species to reproduce results in a child whose parents simply cannot provide, despite their best intentions.  Today’s case questions whether a Vermont trial court properly exercised its jurisdictional authority to determine the life of a toddler with disabled parents.


The facts of today’s case are complex and span approximately half of the SCOV’s roughly 20-page opinion.  The child, C.P., was born in November 2009 in Plattsburgh, New York.  His parents both lived with several adult family members in C.P.’s grandfather’s home in Mooers, New York, a rural community.  All of the adult members of C.P.’s birth home, including parents, were disabled to some degree, and one had a history of sexually abusing others.  C.P.’s mother was the recipient of adult protective services from New York’s Department of Social Services (DSS).

DSS monitored mother’s pregnancy, and created a plan for C.P.’s care for after his birth involving supervision of mother’s and C.P.’s time together.  Mother was prone to becoming frustrated and anxious with C.P., and was not safe to be left alone with C.P. as his sole caretaker.  In April 2010, when C.P. was five months old, parents had a spat, police responded, and mother physically manipulated C.P. in an attempt to stop him from crying, by covering “C.P.’s mouth with hers.”

After this event, mother left.  DSS contacted C.P.’s aunt in Morgan, Vermont, who agreed to take in both mother and C.P. under her wing.  Aunt signed an agreement assuming responsibility for C.P. and stating that C.P. would live with her indefinitely in her home in Vermont.  Aunt, mother, and C.P. then crossed the lake and went to aunt’s home.

Over the next few days, Aunt and her daughter, C.P.’s teenage cousin, assumed daily care for C.P. Mother seemed more interested in hooking back up with father than in caring for her infant son, and familial tensions rose.  Father eventually showed up at aunt’s house to pick up mother, but aunt would not allow parents to take C.P. and contacted Vermont’s Department of Children and Families (DCF).  Mother departed with father, leaving C.P. behind.  A DCF investigator arrived shortly thereafter, heralding the State of Vermont’s arrival in the family’s life.

The first stage in a case like C.P.’s, where it appears that his parents have abandoned him, is for DCF to assert custody.  After C.P. had been in the State one week, DCF filed a petition in Vermont to assume custody of C.P., and requested an emergency temporary care order.  The trial court determined a few days later that mother had abandoned C.P. and granted DCF emergency custody.  The trial court allowed parents visitation.

When it appears that a child’s parents are doing a significantly-less-than-stellar job caring for their child, the next stage, or often the first if he is still living with his parents, is for DCF to determine whether the kid is a child-in-need-of-care-or-supervision, or “CHINS.”  Shortly after it was granted emergency custody, DCF filed a CHINS petition, alleging that mother had provided inadequate parental care and abandoned C.P.  In October 2010, after mother stipulated that C.P. was CHINS because she had failed to arrange for proper medical care for him, the court concluded that C.P. was in fact a child in need of care or supervision.

Shortly after he arrived in the State, C.P. was assessed for his developmental progress.  The assessor concluded that, though he was delayed physically, but within three weeks of living with his aunt C.P. had made approximately three months’ worth of progress.

In connection with a CHINS petition, DCF filed a permanency case plan laying out its goals to try to address the problem.  In June 2010, DCF’s preliminary case plan goals were to either reunify C.P. with his parents, or place him in a permanent adoptive home.  In an effort to accomplish its first goal of reunification, DCF directed parents to find appropriate employment, work with a parent educator, and seek mental health counseling.  Parents were scheduled for supervised visits twice per week for one hour each. 

Once a CHINS determination is made, DCF is required to prepare a disposition report, “another form of case plan,” in which DCF makes recommendations for what, ultimately, it thinks the State should do with its hapless ward.  If it concludes that it is in the best interest of the child to sever the relationship and find a permanent home for the child, DCF can initiate a petition to terminate parental rights, a “TPR” petition.

In November 2010, DCF prepared its disposition report for C.P., recommending termination of both mother and father’s parental rights, and adoption.  Shortly thereafter, and not long after the court determined that C.P. was CHINS, DCF filed a TPR petition.

Over the next year, Parents’ twice weekly one-hour visits recommended in the initial case plan turned into once weekly two-hour visits.  Parents had difficulty finding supervision for their visits and reliable transportation for the 200-mile round trip from New York to Vermont.  They missed almost half their chances to see their son during this time. 

In Spring 2011, a psychologist evaluated parents and concluded that they would not be fit to parent C.P. as he developed.  Mother was unable to “adapt her mode of parenting as the child grew,” and the psychologist anticipated she would not deal well with the back-talking “negative feedback” of an unhappy developing child.  Both parents needed assistance to complete daily tasks, and needed support to care for their child.

At the same time, C.P. was assessed for his developmental progress.  DCF found that, after living with his aunt for a year, he was developing normally with the exception of some speech and language impediments, which were being treated. 

In Fall 2011, the trial court held its disposition hearing on DCF’s TPR petition.  By this time C.P. had adjusted well to his new foster home, and formed a close bond with his aunt and cousin.  C.P. no longer had a strong relationship with his parents, and in fact reacted to them as strangers.  Mother had made some personal progress, but her relationship with her son had suffered, and neither she nor father played a constructive role in their son’s life, nor could they provide C.P. with a suitable home.

In January 2012, the court issued an order terminating parental rights, and laid out in the termination order its reasons for finding that it was not in C.P.’s best interest for his parents to maintain custody and control over their child.  DCF commenced crafting a plan to find a permanent home for C.P.

Throughout the entirety of these complex proceedings loomed the question of whether a Vermont court had any place asserting jurisdiction over the life of a child born in New York, to New York parents, who was only whisked away to Vermont to live temporarily with his aunt.   Father’s attorney raised the issue three times: at the emergency care hearing in April 2010, at the CHINS hearing in October 2010, and at a hearing on termination in November 2010.  At each hearing, the court invited counsel to file a brief exploring the jurisdiction question.  Despite three invitations, no brief was produced.

The court addressed the jurisdictional question in its termination order.  It noted that the case really should have been pursued in New York, and that it had initially only had the ability to exercise emergency jurisdiction when it appeared that mother had abandoned C.P.  However, the court concluded in its termination order that, based on a number of statutory factors we will explore below, by the time the court terminated parental rights it did have jurisdiction. 

In addition to its conclusions regarding termination and jurisdiction, the court noted in its termination order that it did not think DCF had made reasonable efforts to follow its initial case plan goal of reunifying C.P. with his parents, but it invited DCF to request reconsideration of this part of its order.  DCF did so, and on reexamining the efforts DCF had made the court reached a different conclusion.  The court issued a modified version of its previous termination order, striking its sentence stating that DCF had not made reasonable efforts toward reunification.  Parents appealed.

On appeal, parents raise a multitude of issues.  First, parents both argue that the trial court lacked jurisdiction to determine whether to terminate their parental rights.  This topic dominates the SCOV’s opinion, and even draws a concurrence from the Court’s newest member, Justice Robinson.  The SCOV considers the question under the umbrella of the Uniform Child Custody and Jurisdiction Act’s (UCCJA) guidelines as well as In re B.C., a Vermont case interpreting the UCCJA under facts similar to C.P.’s case.

The UCCJA allows a Vermont trial court to exercise jurisdiction over a child if Vermont has become the child’s home state, the child and at least one parent have developed a significant connection to Vermont (indicating it is in the child’s best interest), the child is physically present in Vermont and has been abandoned or requires emergency protection, and no other state has or will claim jurisdiction.

In In re B.C., Vermont exercised emergency jurisdiction and found that the child (B.C.) was CHINS after he had been in the state for only two months.  B.C.’s mother belatedly challenged the CHINS decision on jurisdictional grounds, but because the trial court had general subject matter jurisdiction over child custody cases, the CHINS decision was allowed to stand. 

At some point after the CHINS determination in B.C.’s case, DCF filed a TPR petition.  By the time the court made its decision terminating parental rights, Vermont had home-state jurisdiction over the child because B.C. had been in the State for at least six months.  The SCOV concluded that, even if the initial exercise of emergency jurisdiction was wrong, the State’s interest in finality of judgments, and need to prevent parents from shopping around for a convenient state to hear their case, militated toward allowing the CHINS and subsequent termination decision to stand.

Applying these authorities to C.P.’s case, the SCOV finds that both the CHINS decision and the termination order stand.

Even if Vermont should not have exercised emergency care to begin with, when C.P. had only been in the State for a week, the SCOV concludes the trial court nevertheless had jurisdiction to issue its CHINS decision.  Just as in In re B.C., Vermont has jurisdiction over child neglect proceedings in general, and could technically issue an order finding C.P. CHINS in an emergency, a fact which father conceded when the issue was raised.  Parents did not file a brief on the jurisdiction issue, as father was invited to do three times.  Mother also stipulated C.P. was CHINS, thereby tacitly admitting the court’s jurisdiction.  Parents both had an opportunity to appeal the CHINS decision, but chose not to.

So too with the TPR decision, which is a permanent order.  By the time the trial court issued its decision terminating parental rights, C.P. had lived in Vermont for six months and established significant ties there.  Jurisdiction was proper in both proceedings, says the SCOV.

Parents beg to differ, and argue that the initiation of termination proceedings at the same time as the CHINS decision muddied the jurisdictional waters by linking the two determinations inextricably.  This fact later becomes a point of contention for the concurrence.

Both parents’ and the concurrence’s arguments fall on deaf ears on this point.  The CHINS proceeding was one phase of the case, and the termination represented another phase.  Even if it was initiated early on, each proceeding involved separate statutes and procedures.  The SCOV says “so what?” to the fact that New York failed to step up to the plate, no one challenged Vermont’s CHINS decision or tried to move the case to New York.  By the time the termination order was issued, C.P.’s home state was Vermont, and the issue was moot.  In the interest of providing some modicum of stability to the helpless child, a primary purpose of the UCCJA, the SCOV concludes Vermont properly exercised jurisdiction.

But wait, clamors father!  He did not stipulate to the CHINS finding, unlike mother, thus the CHINS decision is not final to him, and therefore neither is the termination decision.  The SCOV quickly dashes father’s hopes on this front.  Even though CHINS is a temporary measure, the court’s CHINS decision was a final judgment on whether both C.P.’s parents have failed to provide him with proper care, critical issues to his welfare and custody status.  A CHINS finding can easily form the basis for a termination proceeding.  The SCOV also hints that father is a classic forum-shopper: he was a full party in the proceedings, and failed to challenge Vermont’s jurisdiction when invited to do so.  He cannot now take his custody business to New York.

Next, mother argues that the court reached the wrong conclusion regarding termination on the evidence presented.  This requires consideration of the merits of the trial court’s TPR decision, which mother challenges as unwarranted by the facts.  As support, mother points to the steps she has made toward finding mental health support and attending parenting classes. 

The evidence, though, indicates that even if mother has sought help, she was still an unfit parent and would be unable to resume caring for C.P. within a reasonable time.  The trial court found that mother struggled to adapt to C.P.’s needs, her home was not a suitable place for a child, and neither parent did well outside of their communal living situation.  C.P. had suffered developmental delays while living with parents, had not formed a close bond with mother, and could suffer lasting damage if the family was reunified.  The trial court reached the appropriate conclusion despite mother’s progress, the SCOV concludes.

Finally, father argues that the court wrongly concluded DCF had made reasonable efforts to reunify the family.  The SCOV’s decision on this question is complicated by the record below.  It is unclear precisely what steps had been taken towards finalizing a permanency plan for C.P. at the time the trial court terminated parental rights. 

The early filing of the termination proceeding, shortly after the CHINS proceeding, was, as you may recall, a point of contention for father.  The muddled proceedings were governed by case plans that recommended simultaneously that C.P. be reunified with his family, and permanently separated from his family to be placed in a new home.  Even though DCF started out trying to heal the division between parents and C.P., by the time the trial court terminated parental rights DCF was actively seeking adoption.

The trial court did not address the reasonable efforts issue at the termination hearing, it just invited reconsideration. When DCF requested reconsideration, father objected, arguing that DCF never made reasonable efforts to return C.P. to New York.  At the subsequent reconsideration hearing that DCF requested, DCF claimed that it had changed its goals from reunification to adoption by the time the court considered the TPR hearing, and that it did not need to show that it had made reasonable efforts.  There ensued some confusion on which goals DCF should have been or was pursuing.  Eventually, DCF pointed toward the efforts it had made toward reunification, even while it was pursuing adoption, and the court modified its termination order to strike its finding.

Father takes issue with this post-termination modification.  He argues that the court did not have jurisdiction to modify the order, which was final, even if it was to just modify the reasonable efforts conclusion.  But the SCOV notes that these issues were separate to begin, and that the trial court did not have to find that DCF made reasonable efforts before terminating parental rights because reunification is not one of the best-interest factors considered in a termination decision.  The trial court also left the final decision on the reasonable efforts question open for discussion, thus it was free to revisit the issue at a later date.

Father also claims that the evidence shows that the court terminated his and mother’s parental rights based on factors beyond their control, such as their inability to locate reliable transportation for the 200-mile round trip to see their son.  The SCOV does not find this argument convincing.  The trial court found a plethora of other indicators that parents would be unable to resume parenting in a reasonable time frame, noted in the termination order.  The SCOV concludes that the findings were supported by the evidence, and sees no reason to reverse or remand.

Justice Robinson agrees with the SCOV’s conclusion, but pens a separate concurrence to criticize the majority’s application of In re B.C.  She thinks the SCOV does itself a disservice
by considering and extending In re B.C. to conclude the court had jurisdiction over C.P.  In In re B.C., the SCOV stated that, unless DCF seeks termination at the same time as the CHINS disposition, a petition to terminate parental rights is a new proceeding based on changed circumstances justifying modification of the CHINS order. 

Today’s case, Justice Robinson notes, is precisely the exception outlined in In re B.C.: DCF sought termination at the same time the court made its CHINS decision.  The trial court had to bootstrap its jurisdiction for termination with its CHINS jurisdiction.   Parents did not abandon C.P., but were sent away threatened with kidnapping charges if they took him with.  When DCF got involved, C.P. had only been in Vermont for two days.  Thus, the concurrence concludes, the trial court should not have proceeded as if C.P. were a Vermont child, and its jurisdiction for the subsequent termination decision was therefore inadequate.

Though the concurrence takes issue with this aspect of the SCOV’s decision, Justice Robinson concludes this is of no consequence: the parents essentially waived their right to challenge jurisdiction.  At a January 2011 hearing, after the trial court invited parents, on multiple occasions, to brief the jurisdiction issue, and specifically asked parents if they wished to challenge jurisdiction, father’s attorney declined, and mother’s attorney sat silent.  Having declined an express invitation to challenge it, Justice Robinson believes parents lost their opportunity and cannot now challenge the issue on appeal, leading the concurrence to the same conclusion as the majority.

For C.P., the SCOV’s decision affirms that he will remain a Vermont child.  For parents, their short, sad parentage is at an end.  Theoretically, this determination should result in a better life for the child.  And, on the plus side, we are all more knowledgeable about the trial court’s custodial jurisdictional boundaries.  In short, be careful where you leave your kid.

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