In re C.L.
| Decision Date | 27 August 2021 |
| Docket Number | 2020-322,2020-224 |
| Court | Vermont Supreme Court |
| Parties | In re C.L., Juvenile |
On Appeal from Superior Court, Rutland Unit, Family Division David A. Barra, J.
Michael Rose, St. Albans, for Appellant Mother.
Sarah R. Star of Sarah R. Star, P.C., Middlebury, for Appellant Juvenile.
Thomas J. Donovan, Jr., Attorney General, Rachel E. Smith, Deputy Solicitor General, Montpelier, and Martha E. Csala, Assistant Attorney General, Waterbury, for Appellee Department for Children and Families.
Matthew Valerio, Defender General, Marshall Pahl, Deputy Defender General and Juvenile Defender, and Rebecca Turner Appellate Defender, Montpelier, for Amicus Curiae Office of the Defender General.
PRESENT: Reiber, C.J., Robinson, Carroll and Cohen, JJ., and Zonay, Supr. J., Specially Assigned.
¶ 1. Mother appeals the decision of the family division of the superior court terminating her parental rights to her five-year-old son C.L. C.L. separately appeals the court's decision denying his post-judgment motions to vacate the termination order pursuant to 33 V.S.A. § 5113(b) and Vermont Rule of Civil Procedure 60(b), to allow his attorney to withdraw, and to order contact with mother. We consolidated the appeals for review, and now affirm.
¶ 2. We consider in turn a procedural dispute that we deferred until resolution of the case, mother's appeal of the merits, and C.L.'s appeal of the trial court's denial of his post-judgment motion.
¶ 3. Before considering the merits of mother's appeal of the termination of her parental rights, we address a procedural issue that arose during the briefing phase of this appeal: whether C.L. may join mother's brief where he did not oppose termination below and did not file his own notice of appeal from the termination order. After mother had filed her principal brief, C.L. notified this Court that he wanted to join mother's brief opposing the termination order. The Department for Children and Families (DCF) objected. After receiving briefing from the parties and amicus curiae, we issued an order stating that the issue would be decided with the merits of mother's appeal.
¶ 4. We conclude that C.L. was not required to file a notice of appeal in these circumstances. The general rule is that an appellee who does not file a notice of appeal is not entitled to seek reversal or modification of the judgment below. In re Snyder Grp., Inc., 2020 VT 15, ¶ 7, ___ Vt. ___, 233 A.3d 1077 (); Huddleston v. Univ. of Vt., 168 Vt. 249, 255, 719 A.2d 415, 419 (1998) (); see also V.R.A.P. 4(a)(6) ()." 'Once one party has filed a notice of appeal, other parties who have not joined in that initial notice of appeal must file their own notices of appeal if they wish to attack all or a portion of the judgment below and to be relieved of the consequences thereof.'" Snyder Grp., 2020 VT 15, ¶ 7 (quoting 16A C. Wright et al., Federal Practice and Procedure § 3950.7, at 499 (5th ed. 2019)) (alteration omitted). The purpose of the cross-appeal rule is to ensure the orderly presentation of the appeal and to provide fair notice to opposing parties of the issues that will be raised. See El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 480 (1999) (). This rule is applicable to all types of appeals, including appeals from juvenile proceedings.
¶ 5. We distinguish an appellee's effort to advance, by brief or oral argument, independent grounds to reverse or modify the trial court's judgment from the scenario in which an appellee does not contest, or even affirmatively agrees with, one or more arguments for reversal advanced by an appellant. In the latter cases, the appellee is not seeking to invoke the Court's jurisdiction to raise an argument not otherwise before the Court. Nor is the appellee injecting new argument in favor of reversal at an untimely stage in the briefing process-a practice that would disadvantage other appellees who have filed their briefs arguing for affirmance without advance knowledge of newly raised arguments for reversal in a fellow appellee's brief. Other appellees, including the State in connection with appeals of criminal convictions, routinely concede error and acknowledge the propriety of the appellants' arguments for reversal where warranted by the record and the law. Doing so, without proactively seeking to advance an appellee's own arguments for reversal through briefing or oral argument, does not constitute a "cross-appeal" for which the appellee is required to file a notice of appeal. Accordingly, a juvenile, like any non-appealing party, may opt not to contest the appellant's arguments in a given case.[1] Juveniles who do not seek to advance separate arguments challenging the judgment below may simply notify the Court and remaining parties of their support for part or all of appellant's position within the time period the juvenile's brief would have been due.
¶ 6. Here, C.L. requested simply to "join" mother's brief, that is, to indicate his support for her arguments. Because C.L. did not seek to independently brief any argument for reversal and did not seek to argue as an appellee for reversal of an aspect of the trial court's judgment, we conclude that the Court's permission was not required.
¶ 7. Following a three-day evidentiary hearing in June 2020, the family court issued a decision containing the following findings in its order terminating mother's parental rights. Mother and father have three children together. The youngest child, C.L., who is the subject of this appeal, was born in January 2016. Father voluntarily relinquished his parental rights to C.L. at the termination hearing and is not a party to this appeal.
¶ 8. In April 2017, DCF filed petitions alleging that C.L. and his siblings were children in need of care or supervision (CHINS) after C.L.'s siblings, then aged five and three, were repeatedly found unattended at various locations in downtown Rutland. The court issued an emergency order placing C.L. and his siblings in DCF custody. At the temporary care hearing, the court issued a conditional custody order returning the children to parents' care. That order was revoked in July 2017 due to violence in the home and parents' failure to cooperate with DCF or attend appointments. The children were returned to DCF custody and were placed together in a foster home.
¶ 9. Parents stipulated to the merits of the CHINS petitions in October 2017. The court adopted a case plan in December 2017 that included concurrent goals of reunification with either parent or adoption by April 2018. The case plan called for mother to cooperate respectfully with DCF, attend visits with the children, engage with parenting lessons, attend medical appointments, participate in domestic violence counseling, and find employment and safe and stable housing.
¶ 10. Mother had no contact with C.L. from July to September 2017. She was living in New York at the time. In the fall of 2017, her contact with C.L. was sporadic. Mother completed a parenting class in New York and began to engage in visitation supported by Easterseals. She returned to live in Vermont in April 2018. She was employed but did not have secure housing. DCF completed a family reunification voucher for mother but it was denied due to mother's eviction history and bad credit.
¶ 11. In September 2018, a forensic psychologist conducted a parenting capacity evaluation of mother. He noted that mother had regularly attended appointments and appeared to be trying to demonstrate to DCF that she could be a fit parent. He concluded, however, that mother had a significant history of childhood trauma that would likely interfere with her ability to be a regulated and attuned parent. In his opinion, she could not manage all three children, but could manage C.L. alone with ample support including mental health treatment and parenting education. Such support would not be enough, however, if mother did not actively engage in services. The psychologist opined that mother should be given six months to make progress toward reunification.
¶ 12. In October 2018 and in May or June of 2019, DCF offered to provide comprehensive services to mother through the Lund Family Center. Mother declined.
¶ 13. In January 2019, DCF moved to terminate mother's parental rights to C.L. Later that month, mother voluntarily relinquished her parental rights to C.L.'s siblings. C.L.'s siblings were subsequently adopted by the foster family with whom they and C.L. had lived since 2017.
¶ 14. Mother had one visit with C.L. in January 2019 and one in February 2019. She began to attend visits more consistently in March 2019. Mother was consistently employed throughout the CHINS proceeding. However, she did not have stable housing while the case was pending and was homeless at the time of the termination hearing. Mother attended an anger management group but did not consistently attend individual counseling. The court found that mother had not engaged in therapy to deal with her own trauma so that she could effectively parent C.L. Mother's therapist, whom mother had stopped seeing at the time of the hearing, estimated that mother would need six months of active, engaged therapy to address attachment issues necessary to...
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