Monday, July 4, 2016

Modification Motions

In re I.B., 2016 VT 70

By Elizabeth Kruska

For anyone who doesn’t practice in juvenile court, this case is sort of a blip on the radar. For those of us who spend some (read: a lot of) time in juvenile court, this clears up what might have been a question.

Also, one thing I noticed is that this case took place over the span of the first three years of this child’s life. Three years, to someone who is only three, is a lifetime. Unfortunately, we have so very very many juvenile cases in Vermont that sometimes this happens.

On with the show.

A CHINS petition was filed and I.B. was taken into DCF custody as a wee infant, just a couple weeks after she was born. I.B. was supposed to go to the Lund Center with her mom, but her mom didn’t finish the necessary drug assessment in order to go, so I.B. stayed in foster care. The court held a hearing on the merits of the CHINS petition in July of 2013. I.B. was one at the time, and still in DCF custody. Six months later the court adopted a case plan with a concurrent goal of reunification and adoption. This means DCF works on two goals at once: first, getting kiddo home with parents and if that doesn’t work, adoption. Because kids are little and deserve stability and permanency in their lives, DCF works on both goals at once. It would be unfair to work toward reunification for a long time, and then when that doesn’t work, start in on working on adoption.

Somewhere along the way the child files a petition to terminate the parents’ parental rights and that got denied.

By April 2015—so, now I.B. is almost three—the court approves a new plan of reunification with the parents. In October of that year, the court issued a conditional custody order and sent I.B. home with mom and dad.

A conditional custody order, or CCO, is an order from the court giving custody to someone—here, the parents, subject to certain conditions. If a parent doesn’t follow those conditions, the child can be taken back into DCF custody. 

And that’s exactly what happened here. In December of 2015, the State moved to take I.B. back into DCF custody due to some new issues in the home. A hearing was held, and the court ultimately decided to place the child in DCF custody. The court called this a temporary care order, which is what the problem seems to be.

A temporary care order is issued when the court determines that a child needs to be taken temporarily into DCF custody. These are usually issued at the beginning of a CHINS case when it appears it’s in the best interest of the child to be in custody instead of with whomever their caregiver is. This is not an appealable order. This is because it’s a temporary order and isn’t final. Practically-speaking, since these orders usually happen at the very beginning of cases, there will be further proceedings, and the custody situation may change. By statute, these cases are supposed to move relatively quickly. I assume this is so that families aren’t in limbo as things get sorted out. If someone could appeal a temporary care order, it would necessarily slow things down, and it wouldn’t even be at the point of determining whether there was merit to the CHINS petition.

Anyway, SCOV examines the situation here and determines that even though the order taking I.B. into custody was called a temporary care order, that isn’t what it was. What the parties had here was a disposition order that ultimately got modified. A modification of a disposition order is appealable. So, it is totally okay that this got appealed.

SCOV looks at the merits of what happened, and disagrees with Father’s arguments that the court didn’t make appropriate findings or use the appropriate legal standard.

Even though the court didn’t specifically say that there was a change in circumstances warranting the change in custody, it could be inferred from the record. The court held a hearing and took testimony, and the facts elicited during that testimony rose to the level of a change in circumstances. Father also argued that the court should have made findings by clear-and-convincing evidence, which is a higher burden than the preponderance-of-the-evidence standard. SCOV says the preponderance standard is fine, and that’s the right standard for modification of a disposition case plan.

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