Sunday, November 22, 2015

Termination Confusion

In re R.B., 2015 VT 100

By Elizabeth Kruska

I’ve spent the last couple years doing, among other things, lots of juvenile court cases. I’ve come to a few conclusions. First, juvenile cases are really hard; everybody really wants what’s best for kids. Getting to what’s best isn’t always easy, though. Second, the juvenile statutes are really complicated, which sometimes doesn’t reveal itself until a case is waist-deep in litigation and suddenly nobody knows what part of the statute applies (this happens more than you’d think). Third, because the proceedings are confidential and purely created by statute, it’s hard to understand context for opinions like the one in R.B.

Here’s the situation. Mom and Dad had three kids: R.B., O.B., and K.C. These kids are little, like under 8. It appears that R.B. might have had a different dad than the other two kids. Families can be a little complicated. Anyway, Mom and Dad apparently were on the radar of child services in Tennessee, where they lived in 2010. Then they moved to Vermont. In August of 2012, DCF filed a petition alleging the kids were in need of supervision (CHINS), and the parents stipulated to some facts to support that petition. Initially the kids were placed with their paternal grandmother, but were later placed with father’s cousin Kristin with a conditional custody order.

Here’s where stuff starts to get complicated. A conditional custody order (CCO) is an order from the court transferring custody from parents to someone else, but with conditions that must be fulfilled. It doesn’t remove or terminate a parent’s rights to the kids. Also, the kids are not in the custody of DCF. If kids are in DCF custody, DCF controls everything, including where kids are placed. It’s very possible that DCF could place kids with relatives – they do that all the time, and it’s generally how they like to do it. But it isn’t required, and sometimes there aren’t suitable relatives available to take kids for whatever reason. That’s how kids end up in foster homes. When there’s a CCO, DCF still has the ability to monitor the situation, but they don’t have custody. If something goes wrong in the CCO household, DCF has to take the situation back to court to have the judge issue a different order.

DCF didn’t really want the kids to go to Kristin because Kristin’s family had a four-bedroom house and already had four kids in the house. DCF had to concede they hadn’t actually done a home study to evaluate the home, though. Judges aren’t required to do what DCF wants, so the trial judge placed the kids with Kristin’s family on a CCO, saying it was in the kids’ best interest to be placed with those particular relatives.

This goes on until December 2013, when finally a termination of parental rights (TPR) petition got filed. There had been some issues over the preceding fifteen months with issues relative to visits. This was raised, and the court said that if this was still an issue at the time of the TPR hearing the court would take it up then. The hearing was held over 2 days in April 2014 and the judge took the matter under advisement.

By October 2014 there still wasn’t a decision in the TPR, but some issues had arisen relative to the kids being at Kristin’s home. I’m not sure what those issues were, but the opinion intimates it may be related, at least in part, to visitation. DCF filed a motion seeking to have the CCO vacated and to have the kids placed in DCF custody. The rationale was that it would resolve some of the issues and also would make things easier on the adoptive parents.

The court finally issued its TPR decision in November 2014, terminating parental rights. The opinion covered the fact that Mom suffered from some mental health issues that would require lots of therapy, and that Mom had not been able to regain her ability to parent within a reasonable period of time. The court also noted issues with visits, and found that the parents had stagnated in their progress. 

Unfortunately, the trial court opinion wasn’t clear about who now had custody of the kids. Usually a TPR opinion notes that kids are in the custody of the Commissioner of DCF and that the parents’ rights are terminated so the kids can be adopted by someone else. But here there was a problem. The kids had been with Kristin on a CCO for over two years. Also, the opinion only mentioned Mom, but not Dad, so it was unclear at this point who actually had custody of the children.

DCF filed for an Emergency Care Order (ECO) two days later, seeking that all three kids come in to DCF custody. In response, the court clarified that the kids were freed for adoption as a result of the TPR decision, and transferred them to DCF custody.

DCF moved the kids away from Kristin at this point; the opinion doesn’t say why. In January 2015, the kids’ attorney filed a motion for relief from judgment, saying that DCF didn’t show that there was any actual harm to the kids by them staying at Kristin’s. The court agreed, and although Kristin had not coordinated some visits and had missed a few meetings over the two years she had them, found there wasn’t any actual harm. The court put the kids back with Kristin. It’s also worth noting that during this hearing, Kristin said she would gladly adopt the children.

It’s also worth noting that during the two and a half years this case was going on that even though there might have been some issues, nobody moved to amend the CCO in an effort to get some court intervention to change the situation. If DCF wasn’t happy with what Kristin was doing, they could have filed a motion with the court.

Mom and Dad appealed this whole mess. SCOV affirms, which isn’t a big surprise, at least as far as the TPR part is concerned. When the court looks at whether parental rights should be terminated, the court does a two-step analysis. Firstly, was there a substantial change in material circumstances? Secondly, the court goes through four statutorily-defined criteria (but isn’t limited to that, of course) to determine whether termination is actually in the children’s best interest. Here, the court found that Mom and Dad had stagnated in their progress and hadn’t regained the ability to parent. Dad started caring for Mom more due to her own issues, and the court found that Dad wouldn’t be able to do it all himself. Dad hadn’t spent a lot of time with the kids. Mom and Dad also had changed their housing, but it was still inadequate. So, on that front, SCOV affirms that finding.

But Mom and Dad had some other issues with how this unfolded. SCOV ultimately affirms. First of all, things got a little mucked up with the fact that there wasn’t a permanent placement known for the children. The Court has always been clear that the availability of a permanent placement is not a factor in a TPR. The issues in a TPR are central to what’s going on with the parents and the kids at the time the TPR is filed. And a TPR hearing is not a custody battle between bio parents and foster parents where the court picks which one is best.

Mom and Dad also had an issue with the fact that there was an additional hearing in January; they argued it was actually a third day of the TPR hearing that started in April. Dad said he never got notice of it. SCOV said that parents did have notice – Mom got notice directly and Dad got constructive notice, but for whatever reason their attorneys didn’t attend. Second, it wasn’t a continuation of the TPR, it was simply just a hearing about reinstating the previously-ordered CCO.

Mom and Dad also argued that the fact a CCO was ordered didn’t actually terminate rights. It just changed custody. This is confusing and SCOV says no, the court really did terminate their rights.

Justice Dooley concurred because, guess what? He can, and also the statute is confusing. He says the outcome was the right one here. He also says that what the trial judge did was okay. Without going into the weeds on the juvenile statutes, there are several different kinds of permanency outcomes there can be. One, which isn’t used as often as the others, is a simple transfer of custody to a person with a significant relationship to the child. Usually, when there is a TPR the child is already in DCF custody. The court essentially awards all parental rights to DCF without limitation as to adoption of the child. Then someone can adopt the child.

However, the statute doesn’t really contemplate a transfer of custody, as was done here, and then a termination of the parents’ residual rights. That doesn’t mean it can’t happen. Initially, in this case, Kristin had conditional custody of the kids, but the parents still held certain rights, including the right to consent to an adoption. When the parents’ rights were terminated, it was a little unclear who then held that right, since the parents could no longer consent. Justice Dooley points out that this, in theory, could make some kind of weird limbo due to the way the statute works and how it interacts with the adoption statutes.

Since Kristin had physical custody of the kids for more than six months, and now there was no issue regarding the parents holding their residual rights, Kristin could go to the probate court and file for adoption.

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