Saturday, June 14, 2014

Jail Doesn’t Make You Unavailable; You Make You Unavailable

In re D.S. & In re M.H., 2014 VT 38

By Christopher A. Davis

That seems to be the overarching message from the SCOV in this opinion, to the extent such a message can be discerned.

This case involves an appeal by two fathers of a trial court’s decision to terminate their residual parental rights to their two minor children. The mother of both children had voluntarily relinquished her parental rights to both children prior to the final termination hearings.

The issues presented are as follows: Mark, the father of D.S., argues that the trial court based its decision to terminate his parental rights in material part on a factor beyond his control, which is the absence of a significant relationship with D.S. or constructive role in her life when he was prohibited by court order from having any contact with D.S. Todd, the father of M.H., makes a number of arguments. First, he argues that the trial court failed to engage in a forward-looking analysis of whether he would be able to assume or resume parenting M.H. within a reasonable time, and made no findings to support its conclusion that he could not do so.

Let’s jump to the goods and then bootstrap with the salient facts.

With respect to Mark (father of D.S.), the SCOV found that the trial court’s decision to terminate his parental rights was not clearly erroneous, and affirmed. Mark had been incarcerated for the bulk of D.S.’s life for a veritable smorgasbord of offenses, including many (sexual assault on a minor, furnishing alcohol to a minor, lewd and lascivious conduct with a child) that directly related to the safety of children. In the eighteen months prior to TPR proceedings, he had been prohibited by court conditions from having contact with D.S. The SCOV noted that case law makes clear that a parent bears responsibility for the actions that lead to incarceration and imposition of conditions that restrict or eliminate contact with their child. Furthermore, the trial court didn’t rely only on the eighteen-month no-contact period in reaching its decision, but also on findings (undisputed) that when Mark did exercise parent-child contact with D.S., the child was exposed to instability, violence, and substance abuse.

With respect to Todd, the SCOV also affirmed the trial court’s decision, concluding that the trial court did adopt a forward-looking analysis (supported by appropriate findings) as to whether he would be able to resume parental duties within a reasonable amount of time. Todd had spent the bulk of M.H.’s life incarcerated and had last seen M.H. and D.S. two years prior to the termination proceedings when his mother brought them to jail for a visit. He was also incarcerated at the time of termination proceedings. The SCOV noted that a forward-thinking analysis necessarily incorporates the relevance of past events, and that the trial court’s decision was not clearly erroneous based on its findings as to the likelihood of Todd’s re-incarceration and potential difficulties securing stable housing or employment given his criminal history (seven felony convictions and multiple domestic assaults, the latter of which, in the eyes of the trial court, Todd still had “significant” work ahead to address).

Still swinging, Todd argued secondly that the trial court failed to evaluate his capacity to parent M.H. and D.S. (for whom Todd considered himself the “psychological father,” having stood in that role), and simply wrote him off as absent due to his incarceration. He pointed to the fact that while incarcerated he made all phone calls to M.H. provided by court order, engaged with Department of Corrections programming, and was baptized. The SCOV interpreted Todd’s argument to be that under the circumstances, he did the best he could, and noted that the correct standard is whether termination is in the best interests of the child, not whether a parent has done the best he or she could under the circumstances.

The SCOV was also unimpressed with the litany of cases from other jurisdictions upon which Todd relied to argue as to the proper scope of analysis for his relationship to and capacity to care for M.H. The SCOV found that the cited cases, on the whole, dealt with different standards from Vermont’s best-interest criteria, and focused largely on the issue of incarceration as abandonment. Because the cases seemed to focus whether incarceration alone rendered a parent unfit, Todd’s argument suggested that in his opinion, the trial court concluded that simply because he was incarcerated, his parental rights should be terminated. The SCOV disagreed, finding that the trial court properly analyzed the statutory criteria for termination in reaching its decision.

Finally, Todd argued that the trial court made erroneous findings his mother knew her son-in-law (who she allowed to have contact with M.H. and D.S.) was a sex offender, and that the trial court erred by refusing to consider placement with his mother as an alternative to termination of his parental rights. The SCOV noted at the outset that the decision to terminate parental rights is not contingent on placement of the child, but whether termination is in the child’s best interests. The SCOV then concluded that the trial court had analyzed Todd’s mother as a placement option, but ultimately concluded that the best interests of the children warranted continued placement with the pre-adoptive foster parent (Mark’s sister, another kinship placement). In the eyes of the SCOV, the trial court did not ignore the rule that juvenile statutes should be construed to preserve familial relationships, but was also not obligated to “preserve the family” at the expense of the best interests of the child. In any event, the children ultimately remained with family, and while it wasn’t the family member Todd would have chosen, that fact did not demonstrate error by the lower court.

The SCOV concluded that the trial court made appropriate findings that placement with Todd’s mother was not in the children’s best interests. The trial court could disregard testimony by her that she didn’t know her son-in-law was a sex offender based on testimony that she adopted the son-in-law’s infant daughter and filed a relief-from-abuse order on the infant’s behalf against him. The trial court also made numerous other findings as to why Todd’s mother was not an appropriate placement that were not challenged by Todd on appeal.

So sayeth the High Court.

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