Sunday, November 26, 2017


Why does the caged bird sing?
Wait. What? 
In re B.K., 2017 VT 105

By Elizabeth Kruska

Between basically the dawn of time and 2015, the Vermont Supreme Court didn’t overturn any termination of parental rights orders from the lower courts. Since then they’ve overturned several, including the one here.

So, here’s what happened. B.K. and L.K. were two little kids—ages six and seven—taken into DCF custody in 2014 on allegations that they were children in need of care and supervision (CHINS). This filing was because parents had apparently not engaged in services meant to rehabilitate them for domestic violence and substance abuse. The kids suffered trauma as a result of the violence in the home. They missed a lot of school during the 2013-2014 school year.

DCF created a case plan with services for the parents, and a concurrent goal of adoption and reunification with either parent. For those not mired in the fun that is juvenile court, a concurrent plan means DCF simultaneously plans for multiple outcomes. If the parents get it together and can reunify—great. If they can’t, plans to move forward with adoption happen. It’s not fair to little kids to keep them in the system for a long time while parents try one thing, potentially fail, and then a new plan has to start.

Here, Dad did classes, including a domestic violence class, parenting classes, and Family Time Coaching. He had a hard time finding housing at first, but eventually got a steady job and an adequate place to live. Mom, on the other hand, was inconsistent with visiting the kids and ended up in jail for a spell in 2015.

Both kids had some behavioral issues, some of which were pretty pronounced around the times they visited with their dad. They had therapists. Both therapists basically said the kids were better off not living with dad, although one of the therapists opined that it would be a devastating loss if contact with Dad was ended all together.

So, DCF did what DCF does, and filed a termination of parental rights (TPR) petition in April of 2016. A three-day hearing was held in late 2016. In early 2017, the court issued a written order terminating Mom’s rights, but not Dad’s. Even though the court found that Dad was probably never going to be able to parent the kids effectively, Dad was a constructive part of their lives and terminating his rights wasn’t the right move.

Even though there could have been a postadoption contact agreement (PACA), the foster mother (who intended to adopt the kids) was pretty clear she wouldn’t let the kids see Dad as often as the court, and the therapists, thought was appropriate. The court found that Dad’s “loving parental bond” outweighed other factors in denying the state’s termination petition as to Dad.

DCF’s move at that point was to ask the court to alter or amend the decision under Civil Rule 59, arguing that the court didn’t weigh the evidence properly. The court scheduled a hearing for June 2017, saying it would take evidence. DCF’s position was that this was purely a legal argument, not that more evidence was meant to be taken.

The attorney for the children “heard a rumor” that the foster parent might not be able to continue to be the placement for the kids if she couldn’t adopt because she would lose important subsidies.

During the June 2017 hearing, the foster mother testified that the kids recently expressed to her that they wanted to be adopted and become part of their family. She said she wasn’t going to keep the kids away from Dad. But she wanted Dad’s rights terminated so she could adopt rather than become a permanent guardian; she didn’t want Dad to have the ability to go to court and get increased visitation. She would have to hire a lawyer so she could oppose that in the future. I have no idea if this actually would have happened or not. It seems a little like saying you don’t want to buy a house in case in 10 years you might have to pay to fix the roof.

So, based on this new evidence the court didn’t have before, it revised its decision and terminated Dad’s parental rights in a written decision a couple weeks later.

Dad, unsurprisingly, appealed.

SCOV, perhaps unsurprisingly, reverses.

Here’s the problem. The Rule 59 hearing was meant as a hearing on legal issues. DCF’s position was that the court incorrectly weighed the evidence during the original hearing in late 2016. Dad’s position was that the court erred in re-opening the evidence from the late 2016 hearing and supplementing it with additional testimony from the foster parent. If there was newly discovered evidence that would have been vital, whichever party wanted that new evidence before the court would have had to file a different motion.

In any case, DCF, on appeal, argued that the court didn’t base its decision on new findings of fact—it just reconsidered the law. SCOV disagrees. The trial court clearly said it learned two new things: first, that the long-term placement for the kids might be in jeopardy because of a possible loss of subsidies, and second, that the kids were now saying they wanted to be adopted. The court incorporated this new evidence from the Rule 59 hearing into its decision, reversing itself and terminating Dad’s rights.

SCOV finds that this is obviously not harmless error and reverses with the instruction for the trial court to reconsider the evidence presented only at the termination hearing, not at the subsequent hearing.

Can I just have a soapbox for a second? Foster parents do a lot of good, and often end up adopting kids who are placed with them. But, one of the things that comes up in this opinion is the fact there was a “rumor” that the foster parents may not be able to continue to be the long-term placement for the kids if they couldn’t adopt, because they may lose an important subsidy. This might have been the case, but the way it’s framed here, is that it wasn’t entirely clear.

We shouldn’t be doing things based on rumors. Foster parents should be getting clear legal advice about their options. As someone who spends a fair amount of time in juvenile court, this is a frustration for me. Foster parents get left out of the loop a lot. At the time a termination petition is filed, there is often a lot of discussion among the parties about whether there could be postadoption contact agreements, and also other options. But foster parents, if not represented, can get left out of these important conversations. They sometimes feel pressured by one side or another. These are often last-minute discussions. Unfortunately, there is no mechanism by any statute for funding to appoint attorneys for foster parents. That means either attorneys have to assist them pro bono (which is fine but not always a possibility), or the foster parents have to go into their own pockets to pay for counsel. That doesn’t necessarily seem fair, if they are making big, life-altering decisions about adoptions. So, legislature, let’s figure out a way to fund attorneys to help foster parents in termination cases. It doesn’t have to be a lot, but it could certainly assist with situations like this. We don’t want huge decisions of constitutional magnitude being made without as much information as possible. *climbs off soapbox*

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