Monday, March 28, 2016

Incarceration and Termination

In re M.W.2016 VT 28

By Elizabeth Kruska

This is a termination-of-parental-rights opinion regarding a dad. There have been a lot of TPR opinions over the last couple years, and I feel like SCOV is really shaping the law in Vermont with regard to juvenile proceedings. This is good for people who practice in juvenile court. This is also good for the people of our state. See, juvenile proceedings are confidential in Vermont. That helps to protect the families and children involved in the cases so that their very personal information isn’t aired in a public forum. On the other hand, once cases disappear behind the closed door of juvenile court, people on the other side are left wondering what happens. Really, the only bit of information the public gets about juvenile court goings-on (and for that matter, the Department for Children and Families/DCF), is through occasional Vermont Supreme Court opinions. And even then, that’s only the penguin standing on the very tip of the iceberg.

The reason I say all this is because some of the opinions we see seem very rooted in common sense, like this one. A member of the general public who has never set foot in juvenile court—or even thought about juvenile court—would probably look at the facts here and say it makes perfect sense. Harder, though, are the cases that aren’t as clear as this one.

So, here’s what happened. M.W. was born in 2010 and lived with Mom and Dad. The three lived in an apartment above a garage, situated about fifty feet from Mom’s parent’s house. Dad worked a lot, so Mom and Grandparents were the primary caregivers for M.W.

About three years later, Dad got charged with several felonies, including some sex crimes. He was held without bail pending trial. Dad also had a bail hearing after his arraignment, and the criminal court made findings that if Dad was released there would be a substantial threat of physical violence to someone. Brief aside—this does not mean that Dad was going to hurt anyone, it means that the court found that there was a threat. Importantly, the opinion says “someone,” which could mean any human being, including Dad himself. I don’t know if this is the case, but I want to make clear that the opinion is not saying which person potentially faced harm if Dad was released. This analysis involving weighing certain merits of a criminal case happens only during certain bail hearings and it does not mean the criminal court is pre-judging a case while a defendant maintains the presumption of innocence. The important part for purposes of this case is that it caused Dad to have to stay in jail while his case was prepared for trial.

M.W. continued to live with Mom and get care from Grandparents after Dad went to jail. About nine months after Dad’s arrest, DCF filed a child in need of care or supervision (CHINS) petition because M.W. had some injuries while in Mom’s care and nobody could explain them. M.W. was taken into DCF custody, and DCF placed M.W. with Grandparents. Mom later agreed to something that got the CHINS case past merits, and DCF created a disposition plan that had a dual goal of either reunification with Mom or adoption. An amended case plan also included some instructions for Dad to do to be considered for reunification.

I can picture people reading this, gasping, and saying, “How could DAD possibly be considered for reunification? He’s in jail for sex crimes!” Well, no. At this point, Dad is pre-trial and is presumed innocent. The actual problem is that he’s in jail. Practically speaking, it’s not as if Dad can have M.W. living with him, since in Vermont we don’t have family jail (although I think this is an interesting concept). If Dad were to have been acquitted of all the charges against him and released, or somehow otherwise released, there were things he’d need to do in order to be considered for reunification. But, before this plan could even be filed with the family court, DCF changed the goal to a singular plan of adoption.

The TPR hearing rolled around about five months later. By this point M.W. was four and living with Grandparents and had a very close relationship with them. He hadn’t seen his dad in a year. Mom voluntarily agreed to have her parental rights terminated, conditioned on Dad’s rights also being terminated. Dad’s criminal trial had been scheduled and rescheduled many times, and as of this writing (late March, 2016) still hasn’t happened.

The juvenile court wasn’t going to keep waiting for the criminal case to resolve itself. The juvenile case had been lingering for over a year, and little M.W. deserves to have his life settled. So the TPR hearing happened, and the judge terminated Dad’s parental rights to M.W. The court found that even if Dad’s trial happened and he was acquitted of all the charges, there were still a lot of things for him to do to get back into parenting condition. Also, he and M.W. hadn’t seen each other in over a year, and it would take some time to get them reacquainted with one another. Dad appeals.

SCOV affirms for a few reasons, and these seem to be pretty common sense. First of all, Dad says, essentially, “Hold the phone. I’m innocent; you can’t use the facts underlying my charges to say I’m an unfit parent when nobody has proven I’ve done any of this.” SCOV answers by saying, partly, that Dad is right. The juvenile court didn’t say, “Dad’s been accused of some sex crimes and because it’s in an affidavit it must be true.” Not at all, not even close. The juvenile court’s concern was that Dad was in jail pretrial and hadn’t seen his kid in over a year, and there wasn’t really a way that Dad did or would be able to regain his ability to parent in a reasonable period of time. The juvenile court was also worried, though, that the behaviors alleged against Dad might bring harm to M.W., and so pointed out that there would be things Dad would need to do in order to get to the point of being able to parent if he were released.

When a trial court looks at a parent regaining the ability to resume parental duties, the court has to look at it in terms of reasonableness to the child. Dad had been in jail for two of M.W.’s five years; that’s a really long time relative to M.W. If Dad were to have been released from jail at the time of the TPR hearing, it’s not as if he’d be able to jump right into being the full-time parent (remember, at this point Mom voluntarily agreed to have her parental rights terminated already), which would take even more time. M.W. would be sort of hanging out in a limbo state while he waited for his dad to get back to being a parent—if he ever could. Courts aren’t willing to make little kids wait for stability like that.

Dad continues his jail-related argument. Although SCOV found in the past that it’s permissible for a trial court to infer that if a parent is incarcerated, it’s due to his or her own doing, Dad here says he is different because he is held pre-trial. SCOV says in this situation that it isn’t the alleged facts that are the problem, it’s the incarceration itself. It’s perfectly relevant for a court to look at the fact that a parent is incarcerated and to factor that into whether a parent is able to regain the ability to engage in parenting. I suppose if the facts were different—that M.W. had frequent visits at the jail with his dad, and Dad did parenting classes, and wrote lots of letters and cards to M.W., and if Dad was going to be released sometime soon—that the court would consider all that information, as well. Perhaps that wouldn’t lead to a termination.

In any case, it is always what is in the child’s best interest that is what drives CHINS proceedings. The trial court considered that Dad’s incarceration had been most of M.W.’s life, and even when Dad wasn’t in jail, he never filled the role of the primary caregiver. Dad and M.W. are essentially strangers to one another since they hadn’t seen each other in at least a year. In the meantime, something traumatic happened to M.W. He’s a pretty fragile kid, but luckily, he’s got this great bond with his grandparents, who have been his caregivers—either with Mom or on their own—for his whole life.

So, SCOV agrees that the trial court was correct here, and finds that it was in M.W.’s best interests that Dad’s rights be terminated so that M.W. could be adopted by Grandparents.

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