Saturday, January 28, 2017

Rubber Stamp Reversal

In re D.S., 2016 VT 130

By Elizabeth Kruska

It’s not often the Vermont Supreme Court reverses a termination of parental rights (TPR) decision. Like, years and years go past between TPR reversals. Then it happened twice in 2016. One such case was this one.

I’m reading some subtext here from SCOV: TPRs aren’t meant to be rubber stamped.

Here’s what happened here. D.S. and his younger brother W.S. were taken into DCF custody in 2014. D.S. was 2 ½ years old. W.S. was 5 months old. At the time the family came onto the radar, D.S. was found unattended at a post office. DCF investigated and found W.S. wrapped up in a blanket with a bottle propped up. This was concerning enough that DCF sought to have both kids taken into DCF custody. DCF combined this with the fact that Dad had a prior domestic assault conviction (although it had nothing to do with this family) and some under-addressed mental health needs. The kids were placed with their paternal grandparents.

The parents agreed to a finding that the kids were both in need of care and supervision (CHINS) at the time the petition was filed, and DCF filed a disposition case plan. The initial plan was concurrent, meaning DCF simultaneously worked toward a goal of reunification with parents and adoption. This makes sense for kids of this age. If the parents are able to get on track, then that’s great and the kids go home. If not, though, it makes no sense to wait until the parents don’t get it together and then try to figure out where the kids are going to go and who is going to adopt. Especially for really little kids, it’s best to figure out quickly where they’re going to be and how to get them stable.

The initial plan was filed in October 2014 with this concurrent goal, and with a date of March 2015 for DCF to make a decision about which way the case was going to go. During this time, the parents worked on goals set forth in their case plan. DCF creates these plans with specific areas for parents to address based on the areas of need specific to the family. For example, if a case involves substance abuse, it makes sense for the plan to call for substance abuse treatment. If that’s not part of the case, it wouldn’t and shouldn’t be included.

Here, the parents were to engage in Family Time Coaching, which is a visitation program. Parents and kids get to spend time together, and the coach works with the parents around specific skills that can be improved. Unfortunately, in the late fall of 2014, Dad’s work schedule made it difficult for him to attend many of the coaching sessions.

Because of this, and because Mom wasn’t making the progress DCF hoped, in December 2014 DCF changed its goal to a singular goal of adoption. Because of the goal change, Family Time Coaching was ceased in around February 2015. Dad did get to participate in some of the Family Time sessions after the first of the year before it was ceased. In its place, supervised visitation happened at a place called The Family Room. This ended up not working out in the long run due to staffing changes at The Family Room.

A TPR hearing was held over the course of three days in October and December 2015 and one day in January 2016, and the Court granted the State’s request to terminate through a written opinion issued in May of 2016. For those keeping track at home, this is nearly two years after the petition was initially filed.

The trial court found that although Mom attended programs, she didn’t make a lot of progress toward ensuring safety and being focused on the kids. The court found that Mom had stagnated, meaning she didn’t make any progress. With respect to Dad, the court found that Dad didn’t want to parent on his own and thus could not resume parenting responsibilities. Both parents appeal.

SCOV reverses with respect to both parents. In considering a TPR, the court has to consider whether there has been a substantial change in material circumstances from the first disposition order and if so, whether it is in the best interests of the child or children for the parents’ rights to be terminated. Usually the substantial change in circumstances is stagnation or deterioration. But, if there is stagnation caused by factors beyond the parents’ control, that can’t be held against the parents.

Mom made a few arguments, but the one SCOV picked up on was regarding Family Time Coaching and stagnation. It started in October and in March DCF was supposed to make a decision about a singular goal. DCF decided in December, though, that a TPR needed to be filed. Because of the change in the plan to move to adoption-only, Family Time Coaching was ended sooner than it should have been. Mom argued that it wasn’t fair to say she didn’t make progress—the evidence was that DCF’s decision was premature and didn’t allow her the ability to make progress within the program. The program continued through February, and the evidence was that Mom actually did make progress. On top of that, Dad got to participate more in Family Time in January and February. There’s no way of knowing what gains either parent would have made if the program had been continued through its end instead of ending it early.

So, then they shifted over to visits at The Family Room. This worked for a while, but then the visit supervisor left the program and someone else had to take over. Unfortunately, the result was that visitation became inconsistent. This wasn’t Mom or Dad’s fault.

SCOV says the decision to change the goal to adoption-only was premature because there really couldn’t be a finding of stagnation with respect to Mom. Therefore, the TPR judgment with Mom had to be reversed.

SCOV then turns to Dad. SCOV finds that the trial court didn’t make sufficient findings with respect Dad as an individual. It’s not enough for a trial court to say, “well, so, Mom gets TPR'd, so Dad does, too.” The trial court has to make findings that it’s in the child’s best interest that Dad’s rights get terminated.

First of all, Dad had limited participation in the kids’ lives. On review, SCOV reasons that this is not Dad’s fault. Initially, Dad’s contact with the kids was restricted by DCF (unwarranted restrictions, says SCOV). This was due to “unsubstantiated concerns about [Dad’s] domestic violence and mental health” and that supervised visits were done in a less-than-ideal setting.

Mom and Dad presented as a co-parenting couple. They were married and planned to parent the kids together, although Mom did much of the caretaking. This isn’t unusual. DCF didn’t create a Dad-only case plan goal. This was all taken to mean that Dad didn’t want to parent the kids on his own and it certainly isn’t enough to support the conclusion that it was in the kids’ best interest that Dad’s rights be terminated.

In fact, there was evidence that Dad had addressed issues in the case plan. He had addressed his mental health and the potential concern for domestic violence. There was no evidence that there had been any violence in this particular family or that Dad’s prior offense had any impact on his kids. Dad had also taken steps to improve his mental health. Last, Dad did engage in Family Time Coaching when he could. The case plan didn’t set forth which skills Dad needed to improve.

SCOV says there just wasn’t a showing that Dad did not live up to a plan of services and that it was in the best interest of his kids that his rights be terminated.

SCOV reverses with respect to both parents.

No comments:

Post a Comment