In re R.W.

• Citation: 2011 VT 124,39 A.3d 682
• Decision Date: 19 December 2011
• Docket Number: No. 11–006.,11–006.
• Parties: In re R.W. and N.W., Juveniles.
• Court: United States State Supreme Court of Vermont

2011 VT 124

39 A.3d 682

In re R.W. and N.W., Juveniles.

No. 11–006.

Supreme Court of Vermont.

Nov. 18, 2011.Motion for Reargument Denied Dec. 19, 2011.

Michael Rose, St. Albans, for Appellant B.W.

William Sorrell, Attorney General, Montpelier, and Martha E. Csala, Assistant Attorney General, and Andrew Stone, Legal Intern (on the brief), Waterbury, for Appellant/Cross–Appellee Department for Children & Families.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Respondents–Appellees.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

BURGESS, J.

¶ 1. In this termination of parental rights case, we consider two separate appeals pertaining to mother's and father's respective rights to their two daughters, seventeen-year-old R.W. and thirteen-year-old N.W. The case presents novel jurisdictional questions because the parents and children are citizens of Sri Lanka and, although mother and the children have been residents of Vermont for a number of years, father continues to reside in Sri Lanka and has never been to Vermont. The Department for Children and Families (DCF) petitioned to terminate both mother's and father's residual parental rights. The family division granted the request as to mother, but concluded it lacked personal jurisdiction over father. Mother appeals termination of her parental rights, arguing that the family division of the superior court applied the incorrect standard of proof with respect to changed circumstances and engaged in a faulty best-interests analysis. DCF filed a separate appeal as to father, arguing that even though father lacks minimum contacts with Vermont, the court has jurisdiction to adjudicate the status of his children, who were within the court's jurisdiction. We reverse the court's decision as to both parents and remand the cases.

¶ 2. The court found the following facts. Mother was born in Sri Lanka to a Catholic Sinhalese family. Mother worked as a teacher in Sri Lanka. She married father in 1992. R.W. and N.W. were born in Sri Lanka in February 1994 and November 1997, respectively. In 2000, after father lost money in business dealings, mother left for New York City and found work as a nanny to help pay off father's debts. R.W. came to live with mother in 2002 when she was eight. Mother integrated herself into the Sinhalese community in New York and met a man, whom she married in July 2003.¹

¶ 3. Mother, her new husband, and R.W. moved to Rutland, Vermont in the summer of 2003. Shortly thereafter, N.W. came to live with them. The family then moved to Barre in September 2003 to act as caretakers for a motel. The girls attended school, learned English, and became exposed to American culture. In July 2005, the family moved again, this time to Stowe to work at an inn. Some time between April and June 2006, R.W. disclosed to her school guidance counselor that her stepfather was sexually and physically abusing her. She also alleged that mother was disciplining her by hitting her with a broom handle. R.W. described a specific incident where mother hit her with a wooden spoon on her hand. DCF investigated and substantiated the allegations of abuse. Following DCF's petition to have the girls adjudicated children in need of care or supervision (CHINS), the court granted an emergency detention order on June 9, 2006, and DCF obtained custody of the girls. R.W. and N.W. were placed in a foster home, and R.W. began to attend counseling. Both girls adjusted quickly to their new situation and excelled academically and socially in their new schools.

¶ 4. Unfortunately, the merits hearing on the CHINS petitions was delayed due to the difficulty of obtaining a Sinhalese interpreter to assist mother, her counsel, and the court. During this waiting period, mother and stepfather had a baby boy in August 2006. Visits with mother were difficult during this interim period because stepfather was prohibited from having contact with the girls by the family division and also by the criminal division in connection with pending criminal charges. The merits hearing was finally held in January 2007. At the hearing, mother admitted that she had hit R.W. with a wooden spoon. She claimed that such punishment was acceptable in Sri Lankan culture. The court found that DCF had established by a preponderance of the evidence that mother had physically abused R.W., and that N.W. was at risk of abuse. The court declined to make findings on the sexual abuse allegations.

¶ 5. The initial case plan had a goal of reunification. Nonetheless, the girls remained in DCF custody through 2007. Reunification and visitation with mother were complicated by the fact that mother was still living with stepfather. Mother was economically dependent on stepfather to support and care for her and the new baby. She was also legally dependent on him for her status in the United States. Visitation was supervised and took place primarily at DCF offices. Although mother admitted that even prior to R.W.'s allegations she recognized that stepfather had a strong affinity for R.W. and she suspected he was “engaging in inappropriate sexual behavior” with her, she blamed R.W. for the break up of the family and was skeptical of the sexual abuse claims. According to R.W., during visits, mother repeatedly urged R.W. to tell the truth and drop the allegations, but the visit monitors were unable to tell how much pressure mother applied to R.W. because the conversations were in Sinhalese.

¶ 6. In 2008, mother began to believe R.W.'s allegations, and stepfather left the household. DCF assisted mother in obtaining an apartment and filing a petition for asylum so she could obtain residency visas for her and the girls. After progressively increased visitation, in the fall of 2008, R.W. and N.W. were living almost full-time with mother while still in DCF custody. Mother's relationship with the girls was strained by disagreements over the girls' clothing and behavior. Mother perceived that they lacked respect for their elders, used inappropriate speech, and wore immodest clothing.

¶ 7. In February 2009, mother and R.W. had an argument about household chores, and mother broke a household item in anger and frustration. In March 2009, an event occurred in which it appeared that mother was not adequately supervising R.W. DCF considered it a serious incident and again placed the girls in foster care. Mother lost the financial support DCF was providing and in June 2009 moved first to New York to stay with friends and then to Texas, where stepfather was living. While in Texas, mother lived with him for at least some period of time. Mother had a supervised visit with the girls in August 2009, but then had little contact with them until her return to Vermont in February 2010. At the time of the final hearing, mother and her son were living with a friend in Vermont. Mother was working part-time, taking English classes, and trying to obtain a residence. She also had instituted proceedings to end her marriage with stepfather.

¶ 8. In September 2009, DCF filed petitions to terminate the parental rights of father and mother. In March 2010, DCF moved for permission to serve father by publication. In support, a DCF investigator averred that he had been unable to locate father by searching computer websites, or by contacting the Sri Lankan embassy and a Sri Lankan government agency where it was believed father had been employed. The investigator also explained that he had attempted to contact a friend of mother for assistance in locating father, but this person had not called back. There is no mention in the affidavit as to whether the investigator sought mother's assistance directly. Based on DCF's application and supporting affidavit, the court granted service by publication, and notices of the termination hearing were published in a Sri Lankan newspaper in English and Sinhalese.

¶ 9. Evidently, mother did have contact information for father. At the final hearing, mother testified that R.W. asked mother for father's electronic mail address. Apparently, R.W. used the electronic mail address to contact father, who then contacted DCF's counsel and the girls' caseworker. Father's emails to DCF's counsel indicate that father sought to obtain a visa so he could attend the termination hearing, but that he had been unable to do so.

¶ 10. Prior to the commencement of the final hearing, a person identifying himself as father contacted the court, and there was a discussion on the record as to whether father could participate by phone. The court concluded that it could not make the necessary findings under Rule for Family Proceedings 17 to allow father's participation by phone because it could not verify father's identity or assure the adequacy of its telephone system to afford all parties participation as required by the rule.² Thus, the court denied the request.

¶ 11. The termination hearing proceeded against mother. DCF presented testimony from the girls' therapist, their foster parents, and two DCF caseworkers. Mother testified on her own behalf. Based on the evidence, the court concluded that there was a change in circumstances because over a substantial period of time mother had not made progress towards addressing the issues that led to the children being taken into custody. The court made no findings regarding the truth of the sexual abuse allegations against stepfather, but it found that mother did not properly support R.W., inappropriately pressured R.W. to recant her claims of abuse, and did not demonstrate interest and affection for the girls. The court determined that the State's burden was to show stagnation by a preponderance of the evidence and it found that DCF had met this burden. The court found by clear and convincing evidence that termination was in the children's best interests because mother would not be able to parent them within a reasonable time and they needed stability.

...