In re C.B.
| Citation | 249 A.3d 1281 |
| Decision Date | 25 September 2020 |
| Docket Number | No. 20-111,20-111 |
| Court | United States State Supreme Court of Vermont |
| Parties | IN RE C.B., Juvenile |
Sarah R. Star of Sarah R. Star P.C., Middlebury, for Appellant Father.
Thomas J. Donovan, Jr., Attorney General, Montpelier, and Martha E. Csala, Assistant Attorney General, Waterbury, for Appellee Department for Children and Families.
Adele V. Pastor of Adele V. Pastor Law Office, Barnard, for Appellee Juvenile.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. Father appeals a family division order terminating his parental rights to his son C.B., born in August 2016. On appeal, father alleges that the court committed several errors related to paternal grandmother's requests for a guardianship of C.B. in the probate division and for visitation with C.B. in the family division. Father also asserts that the court deprived him of standing at the merits stage, failed to assign him counsel, and erred in not directing a suitability assessment of paternal grandmother at the initial temporary-care hearing. We affirm.
¶ 2. The State filed a petition alleging that C.B. was a child in need of care or supervision (CHINS) in October 2017 based on allegations that father had repeatedly engaged in domestic violence and mother continued to allow father to be around her and C.B. despite repeated abuse and court orders barring contact. At the time the case was filed, mother was the custodial parent and father was not yet identified as C.B.’s parent. Mother, as the custodial parent, stipulated to the merits in January 2018 and agreed that C.B. was without proper parental care. C.B. was placed with mother under a conditional custody order (CCO), which prohibited mother from allowing contact between father and C.B. as long as court-imposed criminal conditions of release barred such conduct. A disposition order was issued in March 2018 that continued conditional custody with mother. Custody of C.B. was transferred to the Department for Children and Families (DCF) after mother violated the CCO, including by permitting father to have contact with C.B., and then the court transferred custody back to mother with conditions. In August 2018, the court transferred custody of C.B. to DCF based on its finding that mother had violated the terms of the CCO. DCF placed C.B. with a foster family, where he has since remained.
¶ 3. Father's parentage was established in January 2018 and he was added as a party to the case. A January 2018 order gave father the right to supervised parent-child contact, but he did not follow through and no visits took place. In June 2018, father filed a public-defender application and was assigned counsel. Father was incarcerated in November 2018 and remained there throughout the rest of the case. Father has a lengthy criminal history including a conviction for attempted aggravated assault with a deadly weapon. At the time of the final hearing, he had several charges still pending.
¶ 4. In January 2019, the court issued a modified disposition order, continued DCF custody, and approved and adopted DCF's case plan with a goal of reunification with parents. Father's goals included securing housing, attending appointments with a mental-health provider, refraining from criminal acts, working on domestic violence and other issues in therapy, and demonstrating progress in therapy and parenting programs. At the time, father was incarcerated and not permitted to have contact with C.B. In March 2019, father sent a letter to DCF indicating that he did not want further interaction with C.B. Petitions to terminate parental rights were filed in May 2019. Mother relinquished her parental rights conditioned on father's parental rights being terminated.
¶ 5. Following a hearing, the court found the following. There was a change of circumstances based on father's stagnation. Father had not made progress on important goals, had not had any contact with C.B., and had no relationship with him. Father had not addressed his significant history of violence and serious mental-health issues. Father had not taken the necessary steps to address his mental-health or emotional issues, had not engaged cooperatively with DCF, and had had no contact with C.B. The court assessed the statutory best-interests factors. The court found that C.B. had high needs due to his trauma history and required a consistent routine. He was bonded with his foster parents and had no relationship with mother or father. C.B. was adjusted to his current home and school and had made progress through his therapy. Father could not parent C.B. within a reasonable time. Father required safe housing, employment, therapy, parenting classes, and time to develop a relationship with C.B. Given father's lack of progress towards achieving case-plan goals, there was no possibility he could safely parent C.B. in a time reasonable for C.B., given C.B.’s need for permanency. Father appeals.
¶ 6. Termination of parental rights after initial disposition requires the court to find a change of circumstances and that termination is in the child's best interests. In re D.F., 2018 VT 132, ¶ 29, 209 Vt. 272, 204 A.3d 641. "As long as the court applied the proper standard, we will not disturb its findings unless they are clearly erroneous, and we will affirm its conclusions if they are supported by the findings." Id. ¶ 30 (quotation omitted).
¶ 7. On appeal, father argues that there were several errors made during the pendency of the proceeding, which require reversal. Father's first few claims relate to paternal grandmother. At a May 2018 temporary-care hearing, the court asked the parties about potential placements. Several relatives were discussed, including paternal grandmother. Mother expressed that she did not want C.B. placed with father's family, "unless that was a last resort." The court indicated that it was not interested in pursuing paternal grandmother as a placement "unless there's been a very grave misunderstanding as to her involvement in the events that led to this order."
¶ 8. On appeal, father claims that the court directed DCF to disregard the law and improperly dismissed paternal grandmother as a potential placement without conducting a suitability assessment as required by statute. Pursuant to 33 V.S.A. § 5307(e), at a temporary-care hearing, DCF is required to provide certain information to the court, including the identity of relatives that might be "appropriate, capable, willing, and available to assume temporary legal custody of the child." Id. § 5307(e)(5)(A). For those identified, DCF is directed to complete a suitability assessment. Id. § 5307(e)(5)(B).
¶ 9. Father's argument has not been preserved for appeal. See In re C.H., 170 Vt. 603, 604, 749 A.2d 20, 22 (2000) (mem.) ( that parent must raise issue below to preserve it for appeal). There was no objection at the temporary-care hearing or later in the proceeding to the court's direction to DCF or DCF's action in not pursuing paternal grandmother as a placement at that time. Because the issue was not raised with the trial court, there was no opportunity for the court or DCF to explain the reasons for their actions. On appeal, the State contends that there were credible reasons for the court to find that grandmother was not an "appropriate" placement, 33 V.S.A. § 5307(e)(5)(A), including that she had allowed father to see C.B. in violation of father's conditions of release. Given the lack of preservation, we do not address the argument. See In re A.M., 2015 VT 109, ¶ 28, 200 Vt. 189, 130 A.3d 211 ().
¶ 10. Father also claims that the court erred in denying grandparent visitation. After the termination petition was filed in the family division in May 2019, paternal grandmother sought to appear in the juvenile proceeding through an attorney and requested visitation. The court declined to enter grandmother as a party and denied the request for visitation. The court acted within its authority in denying this request. Grandparents, who are not guardians or custodians, are not parties in juvenile proceedings. See 33 V.S.A. § 5102(22) (). Moreover, there is no statutory right to grandparent visitation for children who are the subject of juvenile proceedings. See id. § 5319(e) ().
¶ 11. After the State moved to terminate parental rights, paternal grandmother filed for a guardianship of C.B. in the probate division. The probate division's jurisdiction over guardianship proceedings when the same child is the subject of a custody proceeding in the family division is governed by a statute pertaining to guardianship adopted by the Legislature in 2014, 2013, No. 170 (Adj. Sess.), § 1, and a 2016 amendment to the statute governing permanent guardianships in juvenile cases, 2015, No. 170 (Adj. Sess.).1 The purpose, history, and scope of these legislative enactments are important to resolution of this appeal.
¶ 12. The 2014 legislation was the culmination of a multi-year effort to update the minor guardianship laws and to deal specifically with the relationship between minor guardianship proceedings in the probate division and CHINS or domestic cases in the family division. In 2011, the Legislature established a multi-stakeholder committee to study issues related to probate and family division jurisdiction over minor guardianship proceedings. 2011, No. 56, § 23. The committee was charged with studying, among other things, "the circumstances under which it is appropriate to transfer minor guardianship proceedings between the probate and family divisions, including...
To continue reading
Request your trial
-
In re Appeal T.O.
...division in the CHINS case takes into account their presence and claims. See 14 V.S.A. § 2624(b) ; In re C.B., 2020 VT 80, ¶ 16, ––– Vt. ––––, 249 A.3d 1281. However laudable the state and federal legislative goal of promoting the placement of children with relatives, the Human Services Boa......
-
In re S.O.
...determining if a guardianship should be established. It cited In re C.B. in support of its conclusion. See 2020 VT 80, ¶ 25, ___ Vt. ___, 249 A.3d 1281 (recognizing that in determining how to address transferred guardianship petition and assess what course of action serves child's best inte......
-
In re Guardianship of S.O.
...and determining if a guardianship should be established. It cited In re C.B. in support of its conclusion. See 2020 VT 80, ¶ 25, 213 Vt. ––––, 249 A.3d 1281 (recognizing that in determining how to address transferred guardianship petition and assess what course of action serves child's best......