Family Ties

By Andrew Delaney

In re K.M.M., 2011 VT 30  

K.M.M. has been her grandfather’s ward since 2001, when her parents entered a voluntary guardianship.  At that time, K.M.M. was eleven months old.  Although dad petitioned to terminate guardianship in 2002, and grandpa subsequently petitioned to terminate parental rights and adopt K.M.M., this “family drama” has remained unresolved for nine years.  In 2009, the Caledonia Superior Court considered the matter on appeal from the Caledonia Probate Court.  The superior court denied grandpa’s petition to terminate parental rights and dad’s petition to terminate the guardianship.  In essence, nothing changed.  The SCOV affirms denial of the petition to terminate parental rights, but reverses and remands on dad’s petition to terminate guardianship.

Here’s the background.  K.M.M. is now eleven years old.  Mom and dad initially agreed to the voluntary guardianship because they both had substance-abuse issues.  Dad was also in jail for various criminal violations, including a high-speed chase with police while K.M.M. was in the car.  So, uh, yeah—voluntary guardianship seemed like an all-around good idea at the time.

Dad gets out of jail in 2002, and as the SCOV states, he starts to get it together.  That same year he starts petitioning to terminate guardianship.  Grandpa files a counter-petition to keep Dad away from K.M.M. and to formally adopt K.M.M., but nothing gets decided until 2009, when the Probate Court issues a pro forma denial to both.  Despite the pending petitions from both sides during 2002–09, the probate court appears to have focused on trying to work out a visitation and support schedule.  This did not work out well.  Sure, the probate court ordered studies, counseling, and whatnot, but Dad and Grandpa hate each other.  Dad didn’t contribute to K.M.M.’s support, but the court found that Grandpa wouldn’t have accepted support had Dad tried, so it’s kind of a moot point that got pushed around for seven years.   

In fact, the court-ordered studies found that the hostility ran deep—back to dad’s childhood.  Needless to say, recommendations were made and ignored.  Grandpa and Dad tried various maneuverings to terminate the rights of the other.  The procedural history in probate court is somewhat fascinating in the category of “and you thought your family had issues . . . .” 

On appeal to the superior court, the trial court found that Dad was ready for visitation and ordered the same.  That worked out, and Dad got more court-ordered visitation.  The trial court’s final decision was to deny Grandpa’s motion to terminate parental rights and adopt as well as Dad’s motion to terminate the guardianship. 

In so ruling, the trial court noted the presumption that parental custody is in the best interests of the child.  Nonetheless, the court required Dad to show “by his acts and deeds” that it would be in K.M.M.’s best interests to return to Dad’s custody.  The court also opined that K.M.M. was doing well with Grandpa, and that a new family evaluation would have to take place before changes would be made because the last one was done in 2006, and was “all, like, old and stuff.” (My paraphrasing.)  The trial court kicked the case back to the probate division and both parties appealed.

On appeal, Dad argued that the trial court screwed up because it placed the burden on him to prove that parental custody is in K.M.M.’s best interests.  Dad said that violated his constitutional due-process rights to care, custody, and control of his child.  Grandpa, in turn, argued that the trial court screwed up because it disregarded statutory factors in denying his motion to terminate parental rights and placed Dad’s rights ahead of K.M.M.’s best interests. 

The SCOV reasons that once the trial court found that the termination of parental rights was not warranted, then it should have returned K.M.M. to Dad.  The SCOV begins its discussion with Grandpa’s petition to terminate parental rights because that goes to why the voluntary guardianship should be terminated in this case.  To terminate parental rights, it needs to be shown by clear and convincing evidence that for at least six months before the petition was filed the parent didn’t exercise parental responsibility.  Statutory factors to be considered include payment of child support, communication and visitation with the minor, and willingness to assume legal and physical custody.  Then the court should consider the best interests of the child.  Those factors include the timeframe for the parent to assume responsibility; the child’s adjustment to home, school, and community; the child’s relationships with others; and the parent’s role in the child’s life.  The standard is fairly high.

Grandpa tries to argue that any factor listed in the statute should be sufficient to terminate parental rights.  Grandpa focuses on Dad’s lack of payment of support and says that should be enough to terminate Dad’s rights.  SCOV doesn’t buy it.  The SCOV notes that it’s only after consideration of all the factors that the discussion moves to best interests of the child.

Grandpa also tried to argue that Dad didn’t communicate and visit regularly with K.M.M.  The SCOV doesn’t buy that either.  The SCOV notes that Grandpa played a large role in Dad’s inability to communicate and visit with K.M.M. and that Dad has been trying to regain custody for the past nine years. 

Once the discussion moves to the best interests of K.M.M., the SCOV notes that the trial court’s finding that Dad could resume responsibilities within a reasonable time was a strong factor in Dad’s favor.  No trial court error in placing emphasis on this important factor. 

The SCOV does find error, however, in the trial court’s refusal to terminate the voluntary guardianship.  If you recall anything from your first-year constitutional law class, you’ll remember that parents have fundamental rights to the care, custody, and control of their children.  The SCOV notes this concept and concludes that K.M.M. should be returned to Dad’s custody posthaste.