H.A., In re, 88-199

• Decision Date: 26 January 1990
• Docket Number: No. 88-199,88-199
• Citation: 153 Vt. 504,572 A.2d 884
• Parties: In re H.A., Juvenile.
• Court: Vermont Supreme Court

Page 884

572 A.2d 884

153 Vt. 504

In re H.A., Juvenile.

No. 88-199.

Supreme Court of Vermont.

Jan. 26, 1990.

Jeffrey L. Amestoy, Atty. Gen., Montpelier, Barbara L. Crippen, Sp. Asst. Atty. Gen., and Michael O. Duane, Asst. Atty. Gen., Waterbury, for plaintiff-appellee.

Jean Anne Kiewel of Bech and Associates, Hartland, for defendant-appellee, juvenile.

Charles S. Martin and Catherine Gjessing, Law Clerk (on the Brief), of Martin & Paolini, Barre, for defendant-appellant, mother.

Michael Rose, St. Albans, for defendant-appellant, father.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

DOOLEY, Justice.

The parents of H.A., an eleven-year-old girl, individually appeal the March 16, 1988 order of the district court terminating the residual parental rights of both parents. We affirm.

The history of this case dates back to March 12, 1984, when the state's attorney first filed a petition pursuant to 33 V.S.A. § 645(a) alleging that H.A. was a child in need of care and supervision (CHINS). A merits hearing was held on March 23, 1984, and the court concluded, based on a stipulation by the parties, that H.A. was a CHINS. Following the disposition hearing on May 2, 1984, the court transferred legal custody of the child to the Department of Social and Rehabilitation Services (SRS) and left residual parental rights and responsibilities with the parents. SRS then placed H.A. in a foster home. The mother appealed the disposition order as it applied to her, claiming that the order was not supported by the court's findings of fact. We affirmed in In re H.A., 148 Vt. 106, 528 A.2d 756 (1987).

The court held an eighteen-month review of the 1984 disposition order and issued its order on February 3, 1986. Although SRS had recommended that H.A. be returned to her parents, the court concluded that "her relationship with her parents and brothers is so fragile that a return of her custody to her parents would create more stress than the family could bear." The court further determined that SRS's plan to return the child to her parents failed to adequately address the father's use of alcohol and his possible involvement in sexual abuse of the child. Hence, the court ordered that legal custody of H.A. remain with SRS and that residual parental rights remain with the parents.

Prior to a second disposition review hearing, SRS issued a "Plan Review" on February 27, 1987. The plan review stated that SRS's goal concerning the juvenile was long-term foster care with eventual return to the parents' home. The case plan also stated that "in order to assure that a permanent placement for [H.A.] is established with minimal delay, [SRS] will initiate the termination of [the father's] residual parental rights for [H.A.] by September 1, 1987 if he has not by that time been participating actively for at least three months in alcohol, sexual offender and individual therapy programs." Nowhere in the plan did SRS mention that it intended to seek the termination of parental rights of either parent in the upcoming eighteen-month review.

On March 16, 1987, SRS filed its "Dispositional Review Report" with the court recommending a continuation of SRS custody and transmitting the report of its administrative case plan review. SRS also filed and served a notice of a dispositional review hearing in the juvenile court stating that its recommendation to the court was: "Long term foster care with eventual return to the parents' home." The second dispositional review hearing began on May 11, 1987. The court initiated the proceeding by taking judicial notice, without objection, of its findings of fact made in the February 1986 disposition review proceeding. The only witness who testified on the first day of hearings was one of the SRS social workers.

The hearing was continued until June 8, 1987, at which time the social worker concluded her testimony. Following the social worker, the State called as a witness a psychologist who had recently completed a psychological evaluation of H.A. and her parents. The mother's attorney objected to the psychologist being called at that time because he had been provided with a copy of the psychologist's report only that day and had not yet been able to review it. The court granted a short recess to allow the attorney to read the report, and then permitted the psychologist to testify. The psychologist's report recommended termination of all residual parental rights and responsibilities and that the juvenile be placed for adoption. When the psychologist reached this subject during her direct examination, both parents objected on the grounds that it exceeded the scope of the SRS case plan that was on review. The court overruled the objection, and permitted the psychologist to testify concerning adoption and termination of rights. At the close of the State's direct examination, the court continued cross-examination to a later date in order to allow the attorneys more time to review the report.

The hearings continued one month later, on July 6, 1987. By this time, it was clear to all parties that SRS now sought termination of parental rights. SRS claims that on June 18, 1987 it filed a new plan and a petition to terminate parental rights. The docket entries reflect such a filing although it appears that they went out of the court's possession and were not before the court at that point. The parties, however, apparently received copies of the documents. ^* In any event, the statements of the lawyers at the July 6th hearing show that they were aware that SRS had changed its position and sought termination of parental rights as recommended by the psychologist.

At the July 6th hearing, the psychologist was subjected to extensive cross-examination by the lawyers for the parents. Two other SRS case workers also testified on that day. The new SRS plan was introduced through one of the workers, and the court ruled that the proceeding "now encompass[es] the issue of termination of parental rights."

The hearing was again continued until September 29 and 30, 1987. The mother testified at length on September 29, and again for a shorter time on September 30. Although the hearings concluded on September 30, SRS moved to reopen the hearings, and additional testimony was taken on January 27 and 28, 1988.

Based upon over one hundred separate findings of fact, the court concluded in its March 16, 1988 order that "[e]ach of these parents, in their own way, have fostered the continuance of chaos within this family, a destructive environment for the children and ultimately destruction of their own home. They are demonstrably unfit to resume the duties of parenting of [H.A.]." The court terminated the residual parental rights of the parents and granted to SRS the authority to consent to the adoption of H.A.

Both parents appeal the court's termination order. The mother raises four issues on appeal: (1) that the trial court violated her due process rights when it allowed SRS to change the disposition hearing issue from continued foster care to termination of parental rights without providing notice to the parents; (2) that the trial court erred in its reliance upon the testimony of an expert witness because the mother's attorney was precluded from challenging the credibility and admissibility of the expert's testimony; (3) that the trial court did not find sufficient clear and convincing evidence to terminate the parental rights of the mother; and (4) that the trial court failed to find facts to support a substantial change in material circumstances necessary for the jurisdiction to modify a dispositional order.

The father primarily alleges two errors on appeal: (1) his due process rights were violated by late notice that SRS was seeking to terminate his parental rights; and (2) the trial court's findings of fact were either erroneous or irrelevant, and the conclusions of law were unsupported by the findings.

The parents' first complaint is that their due process rights were violated during the second dispositional review proceedings because SRS sought to terminate their parental rights without first providing notice when it initiated the proceeding. 33 V.S.A. § 658(b).

The procedural posture of this case is very similar to the recently decided case, In re J.R., 153 Vt. 85, 570 A.2d 154 (1989). In that case, SRS initially filed a report prior to the eighteen-month review recommending that SRS retain its legal custody of the juvenile. The juvenile's attorney objected and orally requested an order terminating the parents' residual parental rights. SRS then joined in the juvenile's request and issued a supplementary disposition report in support of this new position. We first determined that the juvenile court has the statutory authority to terminate residual parental rights at either the original disposition proceeding or at a § 658 disposition review proceeding. Id. at ----, 570 A.2d at 160 (the power to terminate residual parental rights is implied in the power specified in § 658(d)(4) to consider the child for adoption). We then concluded that the court properly terminated the residual parental rights. We found that there was no procedural error where: all parties to the action were informed that the termination of residual parental rights would be considered at the continued hearing five weeks later; all parties had the opportunity to present evidence, cross-examine the witnesses and make arguments before the court; and the parents both participated and vigorously opposed termination of their parental rights. Id. at ----, 570 A.2d at 160-61.

The due process rights of the parents must be strictly observed in a termination proceeding. See In re R.M., 150 Vt. 59, 70, 549 A.2d 1050, 1057 (1988). The notice must include the fact that the State is seeking a termination of parental rights. See People in the Interest of E.A., 638 P.2d 278, 283 (Colo.1981) (notice must include ...