Saturday, January 21, 2017

The Best Laid Plans

In re P.K., 2017 VT 3

By Elizabeth Kruska

I like juvenile court, and so do quite a few other lawyers. I don’t know anyone who practices in juvenile court who actively enjoys litigating termination of parental rights (TPR) cases. TPRs are a necessary part of the practice and they happen sometimes, but they’re usually very sad.

For those who don’t get to go to juvenile court, here’s how a TPR works. Usually a CHINS (child in need of care and supervision) petition is filed as a result of some sort of issue in the family causing the state to intervene on behalf of the child. Most of the time, families are able to get it together and get on track and be reunited. But sometimes it is in the best interest of the child that the parents’ rights be terminated so the child can be adopted by someone else.

In order for a child to be adopted in this way, first the current legal parents’ rights must be terminated. I say it that way because parents who have adopted a child can have those rights terminated the same way a biological parent can. Once the termination is ordered, the previously-legal parent has no rights at all with respect to the child in question, including the right to have visits or other contact with the child.

That doesn’t mean contact doesn’t or didn’t happen in the past. It just means there is no legally-enforceable method of contact. Suppose Child was placed with Fosters, and Fosters eventually adopted Child. They could do whatever they wanted to do with Child. They could allow Child to see his or previous parents and extended family. Or they could choose to pack up and move far away and never have contact with the previous parents. It’s up to them, because once they have legally adopted Child, she is their child and they call the shots. Realistically, there have been lots of times when adoptive parents and previous parents have gotten along and have been able to work it out so there is some contact. This is especially true in situations where a family member adopts, since there is a good chance there will be some family contact in the future.

A couple years ago, though, the legislature wrote a new law with respect to post-adoption contact between adopted children and previous parents. It calls for post-adoption contact agreements, or PACAs. Juvenile court people rejoiced a little bit when this happened. We know that there are some parents who are just not going to get it together enough to be able to regain the ability to parent. But we also know that those parents aren’t necessarily bad people, and that there is often still a relationship such that the parents and kids ought to be able to keep seeing each other. Before the new PACA law there was no legally enforceable way for visits to continue. With a PACA, there are enforceable visits. The former and future parents sign the agreement, and it’s enforceable in the Probate Division after the adoption is completed.

There are potential pitfalls, which is what happened in this case. A TPR is final and not something a parent can undo. A PACA is signed at the time of the TPR, but only becomes enforceable once the adoption goes through. There is a time lag between the TPR and the adoption because it happens in a different court and there are different documents that need to be filed to support the adoption. And if it’s an out-of-state adoption, good gracious, this can take forever.

P.K. was born in November 2012. It’s not clear when she was taken into DCF custody on a CHINS case, but we know there was a finding on the merits of the CHINS in December 2013. The TPR petition was filed in January 2015. This seems like an expected timeline, given when the CHINS finding was made and the age of the child. Probably DCF waited a year to see if the parents could gain the ability to parent and when it looked like that was not going to happen, they filed the TPR petition.

In the meantime, P.K. was placed with her maternal grandmother, who intended to adopt her. Father voluntarily relinquished his parental rights in July 2015. Mom followed suit and relinquished her rights in October 2015. She gave a couple reasons for doing so. First, she was pregnant with another child, and did not want to cause any adverse consequences to her not-yet-born child by litigating a TPR case and having the judge make findings. If findings are made with respect to one child, they can subsequently be used against a parent with respect to a different child. For a parent who has another child on the way, the last thing they want are findings that they have not gained the ability to parent. That’s almost like writing a blank check for a second TPR.

Second, Mother knew that P.K. was placed with her own mother (so, P.K.’s grandmother), and that her mother had every intention of adopting her. Mother agreed that along with her voluntary termination, she would sign a post-adoption agreement so she could still have contact with P.K. in the future. The PACA essentially sets a floor; it sets the minimum enforceable amount of contact. But if the parties later decide between themselves to more contact, that’s something they can do on their own. In this case, they agreed on 1 visit per month for 7 hours, and some contact on holidays. Grandma could limit the contact or cancel it if it appeared Mother was under the influence of substances at the time of the visit. If it turned out that there were any issues with this contact, Mother could enforce these terms in the Probate Division. If Grandma and Mother got into a pattern of more visits but those stopped, Mother could not enforce the extra visits because they were beyond the PACA.

So, Mother “signs off” in October and goes through an extensive colloquy in court about all the rights she is giving up and how she knows this is permanent. Usually it’s the parent’s lawyer who conducts this colloquy. It’s one time in court when everyone is very sad, including the lawyers. But, at least now there’s a little glimmer of hope with parents who relinquish if they do a PACA with the pre-adoptive parents. Parents sometimes know this is the best choice for lots of reasons. At least with an agreement about contact they can still maintain a little bit of a relationship. It’s an incredibly hard choice.

This is where the best-laid plans go wrong in this case. About 2 months after Mother relinquishes, Grandma comes onto DCF’s radar for locking P.K. outside while the adults inside are “taking their medicine.” DCF removes P.K. from Grandma’s and places her with a different foster home. Forehead, meet desk, because this adoption is not going to happen.

Now what becomes of the PACA that Mom and Grandma signed? Mom tried to go back to court to undo the TPR because at this point the PACA no longer existed, or can’t exist, since the pre-adoptive parent was no longer the pre-adoptive parent. Mom filed a motion under Civil Rule 60(b) saying that the TPR needed to be reopened because it was done with the mistaken belief that Grandma was going to be the adoptive parent. The trial court denied that. SCOV upheld the trial court’s denial. The 60(b) standard is for abuse of discretion, and SCOV couldn’t find that the trial court abused its discretion in not reopening the TPR under Rule 60(b), even under the catchall provision in Rule 60(b)(6). That’s where a party could potentially argue any bit of post-judgment weirdness that the parties didn’t expect pre-judgment.

And here is a little bit of that weirdness. All the parties - Mother, DCF, the State, P.K. (through her attorney and her guardian ad litem) - agreed that in the long run it would be hurtful for P.K. not to have continued contact with her Mother and Grandmother, so there ought to be some contact. Since they were post-TPR, there wasn’t a mechanism other than the now-defunct PACA to make that happen. The Court looked back on the TPR and the voluntary relinquishment colloquy, and found that Mother did it voluntarily and knowing that she was giving up all her rights, including the right to contact. Because of the language of the PACA statute, there really isn’t a remedy for a situation like this one. The PACA goes into place only when the adoption happens. The PACA is sort of an incentive for a voluntary TPR, but the TPR is not dependent upon the PACA’s enaction.

So, Mother also argued that this could be a good time to use this statute, which allows for modification of orders in juvenile cases. The rub, here, though is that there’s a fairly recent SCOV case on this topic, where SCOV said the statute doesn’t allow for a modification of a TPR order. SCOV isn’t about to change their minds here, even though the facts are different than in the older case.

There was also a thought that maybe moving for a juvenile protective order (JPO - yes, I know, juvenile court is an alphabet-soup docket) would solve the problem. SCOV says no to this, also.

There is a tiny little bit of a toehold toward the end, though. It’s a little bit of an open question whether a parent can come in post-TPR and do a new PACA in a situation like this one. It’s odd because at that point the bio or prior parent isn’t a parent anymore and doesn’t exactly have standing. On the other hand, people are making these agreements in good faith that the intended adoptions are going to go forward, and they’re making them with best interests of the children in mind. It was probably really disruptive for P.K. to be moved out of her grandmother’s house after having been there for so long.

Having worked on PACAs, I also make the assumption that P.K. was also having some sort of contact with her mom during the time leading up to the TPR, and maybe even after. Imagine how disruptive it would be for her not only to be out of her grandmother's home, but potentially also not having contact with her mother like she was (the opinion is silent on this - I’m just hypothesizing about things that might have happened). In the opinion it looks like it took about six months from the time P.K. was removed from Grandma’s to the time the trial court was finally able to hear and decide the motion. That’s 6 months of a life that’s only three and a half years long. That’s a long time. I guess this is also a little bit of a plug to get this PACA hole patched up, because this is bound to happen again, and it would be unfortunate for kids to lose out because of things that go sideways that they can’t control.

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