Friday, August 15, 2014

Termination Woes

In re A.W. and J.W., 2013 VT 107

By Elizabeth Kruska

Termination of parental rights: it’s serious, and it’s final. A parent who has been TPR’d can appeal, but that’s about it.

AW and JW were taken into DCF custody, and eventually a TPR petition was filed. A hearing was held, and parental rights were terminated with respect to AW and JW. There was another child, EW, and the petition was denied relative to him. At the hearing, Father argued that he was making progress, so his rights should not be terminated. The trial court terminated his rights, citing some difficulties in the relationship with Father and the kids, and the fact the kids had adjusted very well to their new home. Dad appealed.

Just before SCOV issued the opinion in the AW and JW case, Father filed a motion to modify the TPR finding, citing progress he had made over the course of the year that the appeal was going on. He cited Civil Rule 60, noting that the court could modify, set aside, or vacate an order if there have been changed circumstances, and the change would serve the best interest of the child. The trial court denied the motion, although it acknowledged that Father had made progress. The court also noted that Father was under supervision by the Department of Corrections, and it was possible he could end up going to jail. So, he appealed the denial of the motion.

SCOV affirms. Father tried to rely on some old cases to support his position. One of the old cases had to do with a TPR based on fraud, which doesn’t apply here because there is no issue of fraud. He also relied on a case that was decided at a time when the statute governing TPRs was different.

Under the current juvenile statutes, there is a strong emphasis on timeliness of decisions and permanency for children. Termination orders are permanent. Although there is a juvenile statute that allows for modification of some orders, SCOV concludes that that statute does not apply to termination orders. The danger is that litigation may be never ending unless a TPR is finally final at some point. The juvenile statutes are geared toward permanency for kids so they can grow up to be strong, successful, awesome adults. Revisiting and re-litigating a TPR decision takes away from that goal.

So, although the courts agreed that Father had made progress, once the TPR was done, it was done.

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