 |
| Enjoy this photo of an elephant. |
In re H.T. and M.L.
Here we have another juvenile court appeal. I wish I could say the system we have in place can fix all the problems, but it can’t. And sometimes it feels like the system itself is what causes some problems.
This case is an appeal of a termination of parental rights. The Supreme Court affirmed the trial court’s finding that the parents were not able to parent their children within a reasonable period of time. The parents argued the court process itself stretched things out so far that the deck was effectively stacked against them.
The case started in July 2016 when the children were taken into temporary DCF custody. The parents sought a hearing on the matter, and in September 2016, the court issued a written temporary care order. That order included findings of fact, and was made on the clear and convincing evidence standard.
The next step is to have a merits hearing. But the trial judge said the court wasn’t going to re-litigate what was just all heard in the temporary care hearing. The court also indicated it could make a merits finding based on the information it already had; the merits standard is a preponderance standard. That had already been more than covered with admissible evidence considered at a higher burden in a prior hearing. However, the court was willing to give the parents some additional court time if they wanted to present additional evidence to go to the merits of the petition.
Meanwhile, the case was still moving forward (it’s not as if kids stop growing or needing care while a CHINS case gets litigated), and in November 2016 DCF proposed a preliminary case plan with a goal that the kids should go home with, or reunify with, their parents. DCF created a plan that set forth action steps and a plan for the parents to follow.
The parties returned in January 2017 for their opportunity to present additional evidence. At this point, though, the parents decided to stipulate to the merits of the petition and waive their right to have the hearing. The case was moving along, the parents and children were spending more and more time together, and it was anticipated the kids could go home to their parents (subject to some conditions) by the time the disposition hearing came around. By statute, disposition is supposed to be 35 days after merits; by my math that would have been sometime in February 2017 for this case.
Unfortunately, before this could happen, though, there was a report of injury to one of the kids during an unsupervised overnight visit with the parents. Because of this DCF suspended the overnight visits. This turned out to be a turning point of this case, because overnight visits never resumed. After that a disposition hearing started, but needed to return to court for a evidentiary hearing because the parties did not agree on the disposition goal. Unfortunately, it takes a while for court hearings to get scheduled. The evidentiary hearing on disposition wasn’t scheduled until July 20, 2017. DCF filed a case plan just prior to that with a goal that the children should be adopted.
The new case plan goal changed things, which led the court to cancel the July 20 hearing. DCF filed a termination of parental rights petition. That petition was heard over five separate sessions in November 2018, January 2019, and February 2019. It appears the court did not render a decision until July 2019 – now about thirty months after the parents and kids stopped having overnight visitation together. The trial court pointed to the lengthy passage of time, the kids’ bonds with their foster parents, the kids’ high needs, and the parents’ failure to show improvement in their ability to parent.
The parents raised several points on appeal.
First, they said they didn’t understand they were waiving their right to a hearing in the initial merits finding. If you’ll recall from last week’s summary, a party generally can’t challenge a CHINS merits finding at the time of a termination. The order of events goes merits > disposition > appeal > termination > appeal. But here termination was the initial disposition goal, and disposition didn’t actually get adjudicated until the court simultaneously adjudicated the termination petition. This actually is a case where a merits issue can be raised at the same time as a TPR appeal.
Be that as it may, SCOV affirms the lower court. SCOV finds that the lower court did not commit plain error by not telling the parents that the state would have to prove its merits petition by a preponderance of the evidence. The parents were represented by counsel, and the parents acknowledged that they discussed the matter with and were satisfied with their attorneys’ representation. The court finds the parents were adequately informed about what they needed to know in making their CHINS admission. Furthermore, the parents tried to assert that they were somehow induced to waiving their right to a hearing by being promised that the kids would return home on a conditional custody order at the disposition hearing. SCOV finds that although the trial court seemed hopeful that could happen, that the record didn’t support any sort of inducement or promise about what would happen the next time the case was heard.
The parents also asserted that the delays in the case were actually caused by the State, and that those delays prejudiced the outcome in the case. SCOV says that failure to enter a disposition order for two and a half years was error.
The problem for the parents, though, is that the error actually was harmless because of the specific facts of this case.
Sometimes it makes perfect sense to continue a hearing. Or to start a hearing and come back. Each singular instance of that happening in this case is probably well-supported, but taken as a whole, the time this case took was way too long.
SCOV’s take on this was that the record amply supported the State’s argument that the parents were not able to achieve the ability to parent the children. There were lots of services and supports in place, and the evidence showed that the parents did not progress.
The parents essentially argued, “hey wait a minute – we never had a court-ordered case plan because we never did disposition until the end – how were we supposed to know what was required of us?” SCOV doesn’t find support for this. The evidence showed that DCF and various supports had been in place with the family for many years. The parents didn’t need a court-approved punch list in order to know what they should have been doing. And although the delay meant there was a long period of time with the parents and children apart, SCOV points out there was also a very long period of time for the parents to implement skills and changes acquired through the various services offered.
Last, the parents argued the evidence was insufficient to support the TPR finding. This is a clear error standard. SCOV points out they don’t reweigh the evidence on appeal, and if there is evidence to support the findings, it gets affirmed.
Justice Robinson writes a really thoughtful dissent. I might start keeping a file marked “Justice Robinson’s Thoughtful Dissents” because she’s writing lots of them, especially in juvenile cases. Also, there are excellent footnotes. Regular readers know how much I love a good footnote.
This case went on way too long, and in the dissent’s view, failing to achieve disposition for two and a half years after merits was the opposite of harmless.
This case started with a temporary care hearing which resulted in a very lengthy written decision by the trial judge. When the parties returned for merits, the court commented that it could make a merits finding based on the evidence it had already heard. The problem is that some hearsay is admissible in temporary care hearings but not at merits. Some of the temporary care findings were based on hearsay; that wouldn’t have been permitted at merits. Justice Robinson just can’t find that the parents’ merits stipulations were voluntary if the parents believed the temporary care findings were established for the purposes of merits.
Justice Robinson also points out that there was discussion about the kids going home with the parents at the disposition hearing, which would tend to show that everyone involved believed the kids were going home. This was disrupted by a report of unexplained bruises to one of the kids in the month between merits and disposition. There was never an evidentiary hearing on the fact of the bruises until the TPR hearing began in November 2018.
In this case, the family was initially moving toward being reunified. It wasn’t until just after merits – where there was an existing preliminary case plan goal of reunification – that overnight visits stopped. The bruises that led to the disruption of overnights could have formed a reasonable basis for a temporary suspension of overnight visits. However, that never even got heard – there was no evidence taken or findings made about whether the child’s bruises were caused by a parent.
Justice Robinson finds the delay in this court process created problems. One factor the court looked at in granting the State’s termination petition was that the children had formed bonds with the foster parents. Of course they did. The kids lived with the foster parents for nearly three years while this case was pending. Obviously bonds are going to be formed. And obviously, it would be really disruptive to the kids to yank them out of the homes they’d had for three years. The dissent doesn’t adopt the notion that the delays in the case were somehow engineered to prevent the family from reunifying but does recognize that the governmental intrusion into the family (and thus, the delays) has a very significant constitutional impact on families’ rights to be together.
Comments
Post a Comment