Friday, February 8, 2013

Slippin’ Thru My Fingers

In re DC, Juvenille, 2012 VT 108.

Some years end better than others.  Few people seem to lament the passing of 2012, which seemed on the whole to be a mean, rotten year that most of us were content to grind out with the hope that it would end soon. 

The SCOV does not appear to have had it any better as the end of the year brought a series of cases involving children-in-need-of-care-or-supervision (CHINS) for it sort out.

As we have previously noted, these type of case invoke some of the “most sensitive and human questions of law the legal system must address.”  Today’s case is no different.

DC was born in 2005 to Mother and Father who raised him together for two years.  When parents split in 2007, DC went with father who had support from his mother, the child’s grandmother.  Mother consented to this arrangement even though a child-custody order granted her parental rights and responsibilities. 

Here’s where we hit the first bump.  In 2009, Mother with assistance from the police asserted her custody rights and moved into a motel room with DC.  Two weeks later, the Department of Children and Families (DCF) filed a petition that DC was in need of care or supervision due to a lack of proper parental care.

In support of its motion, DCF put on evidence of the following:

  • Mother’s parental rights had previous been terminated for an older child due to unsafe and unsanitary living conditions and that child’s exposure to the risk of being sexually abused.
  • Mother, at the time, was in a relationship with a known, untreated sex offender who had been seen frequently with mother at her motel room.
  • The motel room was filthy and unsanitary.
  • DC suffered from an untreated respiratory illness.
  • School officials had reported DC arriving at school hungry and not dressed properly for the cold.

At the temporary custody hearing in early 2010, the family court gave Father temporary legal custody and both Mother and Father agreed that DC was a child in need of care or supervision.  DCF generated an initial disposition plan to restore full custody of DC to Father. 

Here is the second bump.  In September 2010, DCF moved to alter the disposition plan because Father had been arrested for aggravated assault and robbery.  Both parents agreed to give conditional custody to the Grandmother who had become DC’s primary caregiver. 

Here is the third bump.  In December 2011, after indicating an interest in adopting DC, Grandmother died leaving DC without a caregiver.  DC was placed in a foster home with a former paraeducator who was trained to work with special needs children.

In February 2012, DCF went forward on a permanency plan for DC, which included a termination of parental rights for Mother and Father. 

Here is where things get a little procedural.  DCF went forward with its termination motion as a modification of the earlier disposition orders.  When this occurs, DCF must prove that there has been a “change in circumstances” such that it is in the best interests of the child to terminate parental rights.  Most often this is shown because the parents have stagnated in their efforts to become better, more competent parents. 

At the hearing, Father immediately gave up his parental rights, but Mother contested.  The trial court indicated that it was confused on how to move forward since none of DCF’s prior plans had focused on the Mother.  Counsel for DC suggested that this was closer to a termination of parental rights at an initial disposition.  Mother and her attorney agreed, and the trial court went forward treating this as a request to terminate from the beginning.  The difference is that DCF did not have to show a change in circumstances but only that termination was in the best interests of the child by clear and convincing evidence.

DCF went forward with its evidence.  Following the hearings, the trial court issued a decision that termination of Mother’s parental rights was in the best interests of the child.  In support of this, the trial court listed seven undisputed findings including the fact that Mother and DC did not have a good relationship; DC had adjusted to the foster home; DC had special needs that Mother did not understand and could not care for; Mother was no closer to being a position to care for DC; and Mother was unlikely to improve or change within a reasonable period of time.

Mother immediately appealed this decision, which brings us to the present opinion, which responds to Mother’s three-fold attempt to overturn the trial court’s decision by challenging its procedural and legal bases. 

It is important to note that Mother does not challenge any of the trial court’s factual determinations in her appeal.  This allows the SCOV to accept the trial court’s fact findings at face value and examine Mother’s legal arguments in light of this record.  This does not bode well for Mother’s chances as the record is fairly damning to the various positions that she takes.

Mother’s first argument is that the trial court exceeded its authority by repositioning the case as an initial disposition.  Mother argues that this was improper and that the trial court should have considered the matter under the “changed circumstances” standard, which Mother argued, would have been in her favor since DCF never tried to pursue a reunification plan between her and DC.

The SCOV rejects this argument on three grounds. 

First, Mother waived this argument by agreeing to the trial court’s proposed procedural scheme.  She agreed to conduct the hearing in the manner of an initial hearing.  The SCOV believes the decision was strategic, and Mother cannot raise the issue for the first time on appeal and expect a sympathetic ear.  This agreement also makes her case different from a number of similar termination cases where the parent simply did not object but did not affirmatively agree to “re-set” the disposition hearing clock.

Second, the SCOV finds that even if analyzed under the “changes circumstances” standard there was evidence of such circumstances abound in this case.  No one had ever intended for Mother to resume custody in this case, and the Father’s legal troubles and Grandmother’s death constituted a significant change in circumstances and justified DCF’s termination motion under the changed circumstances standard. 

Third, and perhaps most important, the SCOV notes that Mother argued that the trial court had to establish that she had stagnated in her efforts to become a better parent.  The SCOV notes that stagnation, while often the standard used to show “changed circumstances,” is not the only way to demonstrate changed circumstances.  The DCF can establish and the trial court can find changed circumstances through other means—such as the death or incarceration of the child’s primary caregivers. 

This is exactly what happened in this case.  So the trial court did not need to consider whether Mother was or was not stagnating to establish that there had been changed circumstances necessary for a termination hearing to arise after the initial disposition of the case. 

Mother’s next argument was that the trial court violated her procedural due process rights by terminating her parental rights based on the actions and events of third-parties.  Essentially, this argument asserted that Mother’s rights could only be terminated by her own actions, such as her own stagnation or her own unfitness.

Again, the SCOV rejects this argument.  The standard in Vermont for terminating parental rights is a best-interests-of-the-child standard.  While this includes some direct and indirect elements of parental unfitness, the SCOTUS and prior SCOV decisions only require clear and convincing evidence of the termination standard.  For some states that is parental unfitness, but for Vermont it is whether termination is in the best interests of the child.  Therefore, there does not have to be clear and convincing evidence of direct parental unfitness—so long as some of the direct and implied unfitness elements are met along with the other considerations that go into the larger standard of best interests.

The point is that the Vermont standard does not necessarily ask whether a parent is a “good” parent or not.  The standard is one of totality of circumstances aimed at protecting the child.

In making this ruling, the SCOV is explicitly acknowledging what the facts of this case imply—namely that Mother had long ago ceased to be a credible, potential caregiver for DC.  In large part, this was decided at the initial disposition hearings and in the 2010 plan when mother was found not to be capable of parenting DC.  This is, no doubt, frustrating for Mother, but as the SCOV notes, custody and termination hearings occur within the context of the case and the best interest of the child is often informed by what has happened already. 

And this is for the best.  Mother herself does not contest the facts that show she has serious limitations and lacks the skills necessary to raise and care for DC.  While it is heartbreaking for the State to take a child from a parent, it is sometimes a necessity, and the undisputed facts in this case suggest that this was the right thing to do.  At the end of the day, Vermont law makes it about the child, not the parent, and Mother’s situation while tragic, is ultimately not the primary focus of the termination process.

This theme is picked up in the SCOV’s analysis of Mother’s final argument.  Mother argued that the trial court must be reversed because DCF never took reasonable efforts to prevent DC’s removal from Mother.  Such efforts are required by statute, but as the SCOV notes, such efforts are not a required before a termination hearing can take place. 

The question of reasonable efforts is separate from whether it is in the child’s best interests for parental rights to terminate.  Certainly, the SCOV agrees, such efforts may factor into the analysis, but they only do to the extent that they can demonstrate that the parent had tried to meet the child’s needs and has failed for external reasons. 

For example, a parent who lost his job might not be able provide nutritious meals for the child.  DCF support would make the difference, and a trial court would likely be in error to terminate parental rights because a parent could not buy food due to external circumstances.

In this case, however, Mother’s history comes back to inform the decision.  Apart from the two-week custody at the end of 2009, Mother has not tried to be DC’s parent/ caregiver.  She has been content to stay out of DC’s life and allow others to act in her stead.  This lack of effort on Mother’s part is fatal to her contention that DCF failed her. 

Mother made her choice to give up her parental responsibilities to Father and Grandmother.  The SCOV rules that she cannot blame DCF for failing to include her during this time when she indicated that she did not want to be a part of the parenting team.  As a result, the claim that DCF failed in making reasonable efforts to prevent removal from Mother, lacks the basis to go forward.

With that, the SCOV affirms the trial court and Mother’s parental rights are terminated.  As with most family law cases, the finality of the decision is in the best interests of the child, but there are no true prevailing parties.  

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