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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