Sunday, March 27, 2016

Immediate Involvement

In re D.S., 2016 VT 38

By Andrew Delaney

It's nearly impossible to figure out what the "right" thing to do is in child-in-need-of-supervision cases.

D.S. was in the system before he was born. Three days before his birth, in fact, DCF filed a child-in-need-of-supervision (CHINS) petition. The trial court issued an emergency temporary care order placing him in the State’s custody upon his grand entrance into the world.

Mom and dad had a DCF history with their older kids, and that was the reason for D.S. being preemptively taken into custody. A couple days after D.S. was born, the court held a temporary-care hearing. At that hearing, mom and dad’s attorneys both argued for conditional custody to mom. The State argued for DCF custody with mom having supervised contact. The parties discussed a possible Lund Home placement if mom was amenable.

Based in part on lack of success with earlier conditional-custody orders, the trial court ordered continued DCF custody with the understanding that mom would have frequent contact. The trial court also mentioned that the parties could request a hearing on a contested conditional-care order.

Multiple status conferences and preliminary hearings followed. Mom’s lawyer withdrew and replacement counsel was assigned. A case plan filed six months after the initial hearing noted that mom hadn’t taken any steps toward getting things set up with the Lund Home. Neither parent requested a hearing on the conditional care order.

Over several days, the trial court held a termination-of-parental-rights hearing as to D.S.’s four older siblings, and consolidated that with the merits hearing for D.S. The trial court issued a decision finding D.S. a child in need of supervision based on parents’ history of neglect of D.S.’s siblings, their inability to keep a clean and safe home, mom’s failure to address her mental-health issues, and both parents’ extensive history of substance abuse. The court also issued a termination-of-parental-rights (TPR) order as to D.S.’s four siblings. Those decisions were appealed and affirmed by the SCOV in two unpublished opinions.

DCF filed a disposition plan with an initial goal of adoption based on mom’s refusal to complete the Lund application or participate in other recommended services, and a failure to maintain regular visitation. The plan also alleged that dad wasn’t doing any better in developing parenting skills.

The State asked the court to keep the findings from the combined TPR/CHINS proceedings because the court made those findings by a clear-and-convincing-evidence standard. The trial court agreed, granted the State’s motion in limine, and ordered that those findings would not be relitigated.

After a hearing, the trial court found that mom and dad hadn’t visited D.S. regularly, nor had they taken advantage of services available to them. Accordingly, the trial court concluded that neither parent would be able to “resume parental responsibilities within a reasonable time measured from the perspective of a young child’s paramount need for permanence.” D.S. had adjusted well to his foster placement. So the trial court terminated parental rights and responsibilities.

Mom and dad appeal. They both argue that the trial court violated their due-process rights when it failed to hold a contested evidentiary hearing at the temporary-care hearing. This failure, they argue, irreparably damaged the parental bond and set them on an inevitable path toward TPR.

The SCOV doesn't agree. It notes that both parents were represented at the temporary-care hearing. The court indicated that it would hold a hearing if requested, but neither party requested it—at that time or at any later time. Because there was no objection made, the SCOV reasons that there’s no basis for the parents’ claims. The SCOV summarily rejects parents’ an-evidentiary-hearing-is-required argument, noting that while the statute confers a right to present evidence, “nothing in the statutory scheme requires” a hearing.

Mom and dad also argue that the trial court screwed up when it granted the State’s motion in limine. Mom contends that she was denied due process when she was precluded “from presenting evidence relating to events leading up to D.S.’s birth, and from relitigating the issue of her ability to parent D.S. at the time of his birth.” Dad also contends that he didn’t have a full and fair opportunity to litigate the issues at the earlier hearing.

The SCOV begins its treatment of this argument by noting that it has kinda-sorta dealt with this issue before—at least indicating that a trial court might take judicial notice of previously litigated facts in one case.

But here, the SCOV reasons, it doesn’t need to get that in depth on the judicial-notice issue. By the SCOV’s analysis, nothing prevented mom from presenting the evidence she wanted to introduce. And, in fact, the SCOV notes that mom did get some of that evidence in. While the SCOV acknowledges some confusion being created by the difference between the State’s request and the trial court’s rulings, the SCOV reasons that there was plenty of time and opportunity to present evidence. As to dad’s claim, the SCOV again notes that there were five days of hearings and both parents were represented and presented evidence.

On the final issue—that the trial court’s decision to terminate parental rights was based on factors beyond mom and dad’s control, the SCOV notes that mom wouldn’t do the Lund Home application and not all of dad’s missed visits are explained by his work schedule. Accordingly, the SCOV defers to the trial court and affirms.

These cases are difficult. Unless you’re in the closed-to-the-public courtrooms where these decisions get made, it’s hard to form an opinion on whether the right thing was done (and if a SCOV Law writer has personal involvement in a case, that writer is prohibited from doing the case summary). I can say that I empathize with and feel for the children, the parents, the judges, and even the State in these cases, and I don't envy the SCOV justices reviewing them. I'll stick to my Monday-morning quarterbacking, thank you very much.

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