Sunday, June 4, 2017

DCF Jumps the Gun

And, we're off to the races . . .
In re A.M., 2017 VT 5

By Amy Davis

As any parent can attest, once in awhile you make mistakes and aren’t a very good parent. This case focuses around whether one slip-up during a juvenile case is enough to make you lose your rights to your kids. It’s not, usually.

These two teenagers had some kids, and at the time of the proceedings, the kids were 8, 6 and 2 ½ years old. Babies having babies, man. At one point, the Department of Children and Families (DCF) got involved with the two older kids, but parents made progress and the case got dismissed.

Mom and Dad tended to fight a bit, would separate, then Dad would say, “you’ve been screwing around on me” so Mom would say, “well yeah but you hit me.” It went on like this for several years, but summer 2012 to summer 2014 seemed calmer. Mom was the one who cleaned and fed the kids, while Dad didn’t do much. Then in July 2014, Dad left and moved to New York about 90 minutes away with Mom. Kids stayed with Mom. Mom filed, and the court granted, a relief from abuse (RFA) order to her in September 2014. That order gave Dad regular visits with the kids. Dad also tried to modify the custody order in family court, but the State intervened with a CHINS petition, so his motion was never heard.

This CHINS petition alleged lack of supervision, unsafe adults in the home, and ongoing domestic violence (with Mom’s new man), and a home visit that said the children were in an “impoverished and unhealthy state of affairs.” Also, mother’s mental health was deteriorating, as the petition was filed after Mom apparently overdosed. All of the allegations had nothing to do with Dad.

DCF got emergency custody of the kids. Dad wanted custody, but DCF said no because DCF couldn’t supervise him in New York. The court held the temporary care hearing in March along with the merits hearing, 3 months after the CHINS filing. In the meantime, Dad continued with his regular visits. Mom stipulated to a CHINS finding, and Dad did not oppose the finding as he was not the custodial parent at the time.

For those of you juvenile regulars, you know the next step is Disposition, where the court decides what each parent has to do to resume parenting without DCF’s involvement. Dad requested custody of the kids in the meantime. The court commenced that hearing, but had to stop because there was not enough time to hear from all of the witnesses. Anywho, it got continued and combined with the Disposition hearing.

So while everything is getting pushed down the court calendar, Mom is doing supervised visits with the kids through a Family Time Program. Dad couldn’t make it to Vermont to do Family Time Visits, but he kept up with his regular day-long visits on Saturdays. DCF found nothing negative with those visits and supported having him as a potential custodial parent. Mom was supposed to do a whole bunch of stuff to get the kids back (counseling, cleaning up the house, etc.). Dad was supposed to do a bunch of stuff too, the standard things parents do, like keep his kids free from physical, sexual, and emotional abuse.

Dad’s only objection to the case plan and its goals was that the court should not prioritize reunification with Mom over reunification with him until there was a home study done on his New York home. That’s where the New York equivalent of DCF comes in and evaluates his home for suitability. Dad preserved presenting evidence on that until the home study was complete, and the court approved the disposition case plan.

Mom did well at first, and complied with most of the tasks in her case plan. She did not maintain a counseling program and did not really connect with the kids’ service providers. She did stay consistent with visitation. By the end of August, DCF concluded that Mom was not going to meet their expectations, and shifted focus to reunification with Dad. Dad’s parenting skills were positive and he had a “very good understanding of what each of his children need in order to thrive in their individual developmental and emotional growth.”

DCF put together a plan to have the kids with Dad more often. So then Dad, on his first weekend with the kids, invites Mom over to meet with the kids at the park. Then he decides to sleep over at Mom’s house with the kids. Mom and Dad thought the kids seemed to enjoy it, but the court decided that it just hurt and confused the kids. DCF was ticked, and moved to terminate both of the parents’ parental rights. The court held a three day TPR hearing, where it terminated rights on the basis of stagnation, and that one weekend where Dad took the kids to Mom’s house. The court found that night as the “closer,” and described them as a “giant step backward at a critical time.” The court terminated both Mom and Dad’s rights. Only Dad appealed.

To win on appeal, Dad has to show that the trial court’s findings are either clearly erroneous, or that the conclusions are not reasonably supported by the findings. The SCOV also reiterated that because parents enjoy a fundamental right to care for their children, terminating rights should only be a last resort “ when there is no reasonable possibility that the causes and conditions which led to the filing of the petition can be remedied and the family restored within a reasonable time.”

Looking at the case plan approved in May 2015, the SCOV says the plan provided few specifics in regards to Dad’s parenting deficiencies or what improvements he needed to make to overcome those deficiencies. The case plan gave pretty standard recommendations for Dad about maintaining safe and stable housing, maintain stable income, and participate in DCF team meetings.

The SCOV finds that Dad was meeting case plan goals with the exception of that one weekend. Dad participated in visits up until the court imposed supervised visits, where Dad could not make the visits due to his work schedule. Dad participated in team meetings and cooperated with the family support program.

The main question at this case was whether that sleepover triggered a finding of changed circumstances that would warrant modifying the case plan to terminate Dad’s right. The SCOV said no. Sure, taking the kids to Mom’s for a sleepover was poor judgment, but not so bad to warrant modifying the goal of reunification with Dad. Furthermore, DCF never informed Dad that he needed to stay away from Mom in order to reunify with his kids, or give Dad a post-sleepover warning saying to stay away from Mom. Instead, DCF threw its hands up in the air and went for TPR. As the SCOV says, “[s]imply put, DCF jumped the gun.”

One other complicating factor was the fact that Dad sort of disappeared after DCF changed the goal to termination. The SCOV finds that Dad’s absence does not support a finding of changed circumstances. Part of the reasoning for this is that DCF disappeared, too, and would not work with Dad to make visitation work with his schedule and living arrangements.

Because the State did not show by clear and convincing evidence that Dad’s conduct surrounding the slumber party gave rise to a sufficient change in circumstances to warrant modification of the case plan goal from reunification to termination, the SCOV reverses.

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