Thursday, March 5, 2015

Not Irrational, Actually

In re C.F., 2015 VT 45

By Elizabeth Kruska

One of these days there’s going to be a termination of parental rights decision that gets reversed. Today is not that day.

C.F. was born in January 2011. He was taken into custody by DCF in May 2013 as his parents struggled with addiction. C.F. was placed with his paternal grandmother, which is where he had been living for about 6 months at that point. Mom was having a really hard time with her addiction and wasn’t able to parent C.F. She ended up getting charged with lots of charges and went to jail. At one point during the course of the juvenile case the Family Division imposed a no-contact order between Mom and C.F.

Dad also had an opiate addiction. Dad had a slow start to get going on his own rehabilitation, but started making progress. He went to a treatment program, he was on probation and complied with his probation requirements, and he helped his mom with C.F. pretty much every day.

C.F., through his attorney, filed a petition to terminate both parents’ parental rights in February 2014, which was about seven months after the case began. Eventually DCF also joined the request before the court.

The termination hearing was held in August 2014. The day before the hearing, Mom asked to have the no-contact condition removed. She was in jail at the time.

The Court held the termination hearing and terminated Mom’s parental rights, but not Dad’s. The Court reasoned that Mom hadn’t regained the ability to parent C.F. within a reasonable period of time. Indeed, Mom had been in and out of jail and hadn’t had contact with the child in many months. The Court found, on the other hand, that Dad had started to get it together, and was playing a constructive role in C.F.’s life. The Court felt that Dad could resume parenting in a reasonable period of time.

Mom appeals, saying this result is irrational. SCOV says, “it’s not irrational, actually.” Mom argued that since the goal in juvenile cases is permanency, it’s irrational to keep the case open for a longer period of time and not get to the point of permanency. If Dad’s rights had been terminated, permanency would have been achieved. Second, she said that she and Dad had gotten back together, and that it really doesn’t make a lot of sense that she’s terminated and he’s not.

SCOV reminds us that at a TPR hearing, the court has to consider the best interests of the child. There are 4 statutory factors the court considers with respect to each parent. The Court here made findings based on the evidence before it with respect to Mom, and also with respect to Dad. Mom and Dad were different in their progress and their respective abilities to parent C.F. SCOV says one parent can be terminated while the other isn’t if there are different circumstances for each parent.

Mom also argues that the result is irrational because Dad said he plans to move back in with her as long as she’s drug-free. SCOV isn’t convinced by this, either. At the time of the hearing, Mom and Dad weren’t a couple. Mom was in jail. Dad was asked if he planned to move back in with Mom and said, “that’s to be decided.” If Mom and Dad get back together, maybe there’ll be future court or DCF involvement. But they weren’t together at the time of the hearing, so speculating that they might get back together really isn’t enough for the Court to terminate Dad’s parental rights.

There’s an odd piece to this also, that C.F., through his lawyers, filed a brief in support of reversing the TPR, even though C.F. was the one who originally filed it. C.F. didn’t appeal, but supported Mom’s appeal. C.F. urges that since the Family Division judge didn’t ask either the lawyer or guardian ad litem for C.F. whether they agreed with the TPR, that it amounts to reversible error.

SCOV says no. SCOV finds that at the close of the hearing the judge asked, “anything further?” and neither the lawyer nor the guardian ad litem for C.F. spoke up. SCOV says they had a chance to speak and didn’t, so that’s waived.

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