Boisvert v. Harrington, No. 99-523.
| Decision Date | 25 January 2002 |
| Citation | 796 A.2d 1102 |
| Docket Number | No. 99-523. |
| Court | Vermont Supreme Court |
| Parties | Julie A. BOISVERT v. Ronald and Sheila HARRINGTON. |
Mary Welford, Manchester, for Plaintiff-Appellant.
Jonathan M. Cohen, Bennington, for Defendants-Appellees.
Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
Mother Julie A. Boisvert appeals from an order of the superior court denying her motion to terminate a guardianship over her minor son, Kelsey Harrington, and ordering an evidentiary hearing on the issue. Mother contends: (1) the guardianship was freely revocable and, therefore, the court erred in ordering an evidentiary hearing; and (2) the court violated her constitutional rights as a parent, and her constitutional right to due process. We affirm.
This case concerns a twelve year old boy whose grandparents have served as his court-ordered guardians since he was thirteen months old. The underlying facts are not well developed because the matter was appealed before an evidentiary hearing, as ordered by the probate and superior courts, could occur. Certain facts, however, are undisputed. The child was born in November 1988. Mother was not married to the child's father and he has since died. In January 1990, mother petitioned the probate court to appoint her mother and step-father, Sheila and Ronald Harrington, as guardians for the boy. Finding that a transfer of custody was "in the best interest of the child," the court granted the petition. In 1996, mother was incarcerated for two months. Since that time, the boy has resided primarily with the Harringtons, and has not had contact with mother since August 1997. Mother acknowledges that after her release from prison, she abducted the minor and was charged with custodial interference.
We note, as well, the extensive probate court record in this case (which we may judicially notice) which contains numerous status reports and two psychological evaluations by a court-appointed clinical psychologist, one submitted to the court in January 1998 and a second in August 1999. These records evidence a high level of family conflict and a troubled relationship between the minor and mother, resulting in a court order requiring that visits between the minor and mother be supervised.
In February 1999, mother moved again to terminate the guardianship. She argued that because she had consented to the guardianship under 14 V.S.A. § 2645(4), it should be freely revocable without the necessity of an evidentiary hearing or any showing that revocation was in the best interests of the minor.1 The probate court ruled that termination of the guardianship was governed by 14 V.S.A. § 3003 and § 3004, which require a hearing to determine if the parent is then the proper person to have care and custody of the child.2 The probate court thus denied the request for automatic revocation and ordered an evidentiary hearing. Mother appealed to the superior court, which upheld the decision of the probate court, ruling that the probate court has "inherent authority over a guardianship created under its authority ... regardless if the guardianship was a voluntary or involuntary one." The court concluded that the original guardianship order had found mother to be "unsuitable," and thus the hearing procedures for terminating a guardianship under § 3003 and § 3004 were appropriate. This appeal followed. Before we address the merits of the appeal, we clarify the basis for our jurisdiction. Following its decision, the superior court remanded the case to the probate court to conduct an evidentiary hearing. Thus, there is no final judgment in the case because that decision did not resolve the controversy between the parties. See Huddleston v. Univ. of Vt., 168 Vt. 249, 251, 719 A.2d 415, 417 (1998). Under these circumstances, mother's proper recourse should have been to request permission to take an interlocutory appeal pursuant to V.R.A.P. 5(b), which she failed to do. According to V.R.A.P. 2, however, we have discretion to suspend "application of Rule 5 where dismissal would most likely result in another appeal after remand, the merits of the question of law were fully briefed and argued, and the Court has expended valuable time on the case." In re Smith, 169 Vt. 162, 167, 730 A.2d 605, 609 (1999). Given that these requirements have been met in this case, we entertain this appeal under V.R.A.P. 2.
In denying mother's request to revoke the guardianship, the lower courts based their decisions on their interpretation of Vermont's guardianship statutes. There are five statutory devices for creating a guardianship:
There are also express statutory provisions for the termination of a guardianship issued under § 2645(2) (), see 14 V.S.A. §§ 3003, 3004, but the statutes are silent on the termination of court-ordered guardianships under 14 V.S.A. § 2645(4) (). This tells us little in itself. Prior to the enactment of § 2645(4) in 1982, see 1981, No. 153 (Adj.Sess.), § 1, the statute contained only the equivalent of § 2645(2) for the appointment of guardians in cases of parental incompetence or unsuitableness, and the revocation statute not surprisingly addressed only this circumstance. When § 2645(4) was added, the Legislature failed to adopt a parallel amendment establishing procedures or standards for revocation of guardianships established under the new provision. The omission does not, however, leave us entirely without legislative guidance. As noted, prior to the addition of § 2645(4) to the guardianship statute, it contained a provision for appointment of a guardian upon a showing that the parent was incompetent or unsuitable, and a parallel provision for revocation of the guardianship if, after a hearing, the court "is of the opinion that the parent is then a proper person to have the care and custody of the child." 14 V.S.A. § 3004. Having provided for a hearing on the merits of revocation when the parent has been found "incompetent or unsuitable" under § 2645(2), it is reasonable to assume that the Legislature intended a similar hearing when custody was transferred in the "best interest of the minor" under § 2645(4). In either case, revocation would be contingent upon a finding, after hearing, that the circumstances which precipitated the transfer of custody no longer obtained.
Mother emphasizes the statutory requirement that she not "object" to the guardianship under § 2645(4), a requirement not present under § 2645(2). This alone does not suggest that she may revoke the guardianship at her whim. The statute also requires a finding that the transfer of custody be in the "best interest of the minor." It stands to reason that, in revisiting its previous ruling, a court should be persuaded that the guardianship is no longer in the child's best interest. Certainly this appears to be more consistent with the legislative scheme than automatic revocation.
It is also more consistent with child custody and guardianship law as a whole. It is fundamental that the state's paramount and indefeasible duty in custody determinations is to safeguard the welfare of the child. As we explained in Paquette v. Paquette, 146 Vt. 83, 90, 499 A.2d 23, 28-29 (1985):
The courts of this state have long recognized that, even in those early days when custody of a child was viewed as a form of property right, "the natural right of the father to the custody of his child cannot be treated as an absolute property right, but rather as a trust reposed in the father by the state as parens patriae for the welfare of the infant."
Id. (quoting Bioni v. Haselton, 99 Vt. 453, 457, 134 A. 606, 607 (1926)).
Nowhere is this more evident than in the guardianship context. In this, as in most states, the probate court essentially exercises a continuing jurisdiction over both the guardian and the ward, and may suspend the guardian for a failure to perform his or her statutory duties. See 14 V.S.A. § 3011 (). Indeed, in appointing a guardian the court assumes the primary responsibility to protect the minor or others who are unable to care for themselves. "In reality the court is the guardian; an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility." Kicherer v. Kicherer, 285 Md. 114, 400 A.2d 1097, 1100 (1979); see also In re Carstens' Guardianship, 151 Neb. 425, 37 N.W.2d 581, 584 (1949) (); Clendenning v. McCall, 145 Ohio St. 82, 60 N.E.2d 676, 681 (1945) ( ). Thus, interpreting the statute to divest the court of its plenary authority to continue or revoke a guardianship — and place that authority instead in the parent who was removed from custody — would represent a fundamental break with traditional common law principles. See Swett v. Haig's, Inc., 164 Vt. 1, 5, 663 A.2d 930, 932 (1995) (...
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