Saturday, January 28, 2017

Things Were Working Just Fine

In re B.G., 2016 VT 107

By Elizabeth Kruska

I struggle with why this case was a thing, because without court intervention, things were working just fine. There’s a dissent, which I noted below, and for what it’s worth, I’m completely in the dissent camp on this one. But that’s just my personal disclaimer.

BG was born in 2006. From the description of Mom in the opinion, she had problems. She had a series of abusive partners. She was overprescribed opiate painkillers that led to a heroin addiction. She tried medication-assisted treatment, but couldn’t stop smoking marijuana so she lost her ability to have take-home doses and had to travel to Rutland every day to get dosed.

But, despite Mom’s shortcomings, she apparently recognized that she couldn’t be a good parent to B.G., and had him go live with his step-grandmother. For sake of ease, I’ll call her Grandmother going forward. She also signed some documentation allowing Grandmother to be involved in school and medical decisions for B.G. Mom didn’t participate at all, really, and Grandmother did pretty much all the parenting for B.G.

Mom had another child, C.B., who lived with her. For some reason in 2014, DCF intervened and removed C.B. from Mom’s home. That case ultimately ended with a termination of parental rights (TPR) regarding C.B. At this point, DCF didn’t do anything with respect to B.G., although there was an understanding that if Grandmother let B.G. go back to live with Mom that DCF would intervene. This was working.

Then, like, a year after DCF intervened with respect to C.B., DCF filed a child in need of care and supervision (CHINS) petition with respect to B.G., alleging that he was without proper parental care. This would fall under subsection (b) of the CHINS statute. DCF later added a second count, alleging that B.G. was abandoned under subsection (a). I’ve done a lot of juvenile cases. I haven’t seen the underlying documents in this case, but when I read this opinion and the facts, I said, “What? How is there any flavor of CHINS here?” Mom’s attorney apparently had a similar assessment, because they had a contested hearing. The trial court found that Mom had de facto abandoned B.G. because she had the opportunity to assert her parental rights by being involved in B.G.’s life, and she just didn’t do it.

Mom says, “Hold the phone, here. I didn’t abandon B.G. I made sure he was with Grandmother and signed paperwork so that Grandmother could take care of him with respect to school and the doctors.” The trial court said, “Nope. Abandoned.” SCOV says, “Affirmed.” This is the worst dialogue I’ve ever written. This is why I’m not a screenwriter.

Justice Dooley concurs and says there was enough to support the CHINS finding of abandonment. But, he also says that the record is clear that B.G. was appropriately and safely cared for by Grandmother. He points out that our judicial system is already maxed out on CHINS cases (and other cases, but there are bucketloads of CHINS cases and because of their nature they go to the front of the line, priority-wise; this causes backups in other court divisions, which is unfair to other litigants who need to have their cases heard). This particular case probably isn’t the hugest of DCF cases and probably could have been figured out in a different way. He echoes a prior concurrence he wrote where he suggested the legislature could come up with a way to ensure protection for kids without a need for DCF intervention. It’s needed sometimes, but not always, and it’s necessary to prioritize allocation of energy and resources. This particular case generated DCF and Family Court intervention and an appeal to the Vermont Supreme Court. All the time and resources put in by the courts, lawyers, family members, and DCF workers could have been spent on other cases.

Justice Robinson dissents. She points out that across our nation, lots of kids are in living arrangements other than with their parents. In this case, Mom decided to move out of state in 2011, and made plans for B.G. to be cared for by his step-grandmother. It was clear that Mom could not parent B.G., and set it up with Grandmother for her to take over. Nobody alleged that Grandmother was somehow unsafe, or that while in B.G.’s care, he wanted for anything.

The record doesn’t support that the child was without proper parental care at the time the petition was filed. Just because mom was not able to parent, doesn’t mean that the child was without care.

The record also wasn’t clear how long this arrangement was meant to last. Maybe forever. Maybe until Mom got her act together. It’s probably too soon to say. But just because it went on for a while doesn’t mean Mom abandoned B.G. He’s not a piece of property, he’s a person; there’s no statutory time limit on how long a child can live with a family member before he’s “abandoned.” Where there’s no risk of harm, why does the state need to get involved?

Also, there was an agreement that Mom would not seek to regain custody of B.G. or else DCF would get involved. For a year or so after making that agreement, there was no evidence to show that she tried. Lots of families make agreements with DCF about things they’ll do, whether in the context of safety planning, or other plans. The fact that DCF then filed a CHINS petition feels unfair. Why would a parent make such an agreement if DCF can file a CHINS petition anyway?

The dissent also points out that a CHINS (b) probably doesn’t hold up here. Mom might have been a little bit of a self-disaster, but she didn’t live with B.G. or have responsibility for him at the time. It’s a bridge too far to say that Mom’s issues caused B.G. to be without proper parental care. B.G. probably did have proper parental care with Grandmother. It doesn’t matter that Grandmother isn’t the parent; the kind of care she provided was like that of a parent. It’s the kind of care that matters, not who provides it.

The dissent last points out that Grandmother could have agreed to a guardianship in order to make her role official. We have a statute for that!

There’s a relatively new minor guardianship law in Vermont that was designed to allow families to go to the Probate Division and create guardianships if they feel it’s the best thing for the family and the child in their particular situations. This was created, at least in part, to help cut down on DCF and Family Court intervention. DCF, however, has a policy specifically not to recommend families to seek guardianships through the Probate Division. A minor guardianship probably would have been the perfect solution in this case, though, given these particular facts.

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