In re CL, 04-362.

• Decision Date: 15 March 2005
• Docket Number: No. 04-362.,04-362.
• Citation: 878 A.2d 207
• Parties: In re C.L., Juvenile.
• Court: Vermont Supreme Court

878 A.2d 207

In re C.L., Juvenile.

No. 04-362.

Supreme Court of Vermont.

March 15, 2005.

Motion for Reargument Denied April 26, 2005.

Present: REIBER, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, Chief Justice (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. Father appeals from a family court order terminating his parental rights to the minor C.L. He contends the court committed reversible error because the evidence failed to show that either: (1) he was an unfit parent; or (2) granting him custody would be contrary to the child's best interests. We affirm.

¶ 2. C.L. was born on October 31, 2002. The Department of Social and Rehabilitation Services (now known as the Department for Children and Families, or DCF) immediately took custody of C.L. and placed her in a foster home, where she has remained to this day. Mother's oldest child resides with her father. The middle child, T.L., was already in DCF custody at the time of C.L.'s birth as a result of mother's ongoing substance abuse, mental health, and parenting problems. Mother voluntarily relinquished her parental rights to T.L. in January 2003. Her parental rights to C.L. were terminated in July 2003. C.L. was then nine months old.

¶ 3. The identity of C.L.'s father was initially unknown, although one man identified by mother as the putative father had been tested and proven not to be the biological father. K.L. (hereafter "father") testified that he ran into mother around the time of her termination hearing in July 2003, and learned for the first time about C.L.'s existence and that he might be the father. Father had known mother for nearly twenty years. They had been involved romantically many years earlier, for a period of six months to one year, and renewed their sexual relationship in 2002. Father acknowledged that he had contact with mother on two or three occasions after C.L. was conceived, but claimed that she never told him about the pregnancy. After learning about C.L., father contacted DCF, which scheduled a paternity test for September 2003. Father failed to appear for the test (he later claimed not to have received notice), and a second test was scheduled for October. The results showed him to be the biological father.

¶ 4. At a status conference on November 14, 2003, two weeks after the test results, father's attorney informed the court that father had met C.L. and the foster mother, and that there had been some discussion about working things out "so that [C.L.] is free for adoption." Accordingly, counsel suggested continuing the matter for thirty days "to resolve the matter amicably." At the rescheduled conference in December, however, the court learned that father had apparently changed his mind, and now wanted custody of C.L ¶ 5. A one-day termination hearing was held in February 2004. C.L. was then almost sixteen months old. As noted, father testified that he was unaware of C.L. for about nine months. Father acknowledged that he had offered no financial or other support to C.L. after learning of the child, but asserted that he had "mentioned" to his lawyer that he was "willing to pay child support." Prior to the hearing, father had two one-hour visits with C.L. and her foster mother. From his observations during these visits, father concluded that the two had "a mother-daughter relationship." He also conceded that C.L.'s foster parents appeared to have taken extremely good care of her, that it would take six months to one year for C.L. to adjust to a change of custody, and that it was not in C.L.'s best interests to separate from the only parents she had ever known. Under further examination by his own attorney, father amended his testimony to claim that a change of custody would be in C.L.'s best interests. Father testified that he was ready and able to assume parental responsibilities. Although he has a lengthy criminal record—including convictions of unlawful mischief, disorderly conduct, retail theft, and simple assault—father claimed to have attained a stable lifestyle; he had recently been given custody of his two young children by his former girlfriend, and owned a taxi service.

¶ 6. The minor's DCF social worker also testified. She stated that the child was thriving in her foster home, was deeply attached to her foster parents and their two older children, whom she viewed as her siblings, and would be emotionally traumatized by a change of custody. The social worker had observed that the foster parents provided a loving home, attended diligently to C.L.'s special medical needs, which included an allergy to all dairy products, and hoped to adopt the child.

¶ 7. At the conclusion of the hearing, the trial court indicated that it wished to hear from an expert concerning the potential impact of a move on a child of C.L.'s age, and the parties agreed to have a court-appointed expert provide such an opinion. A pediatrician specializing in child development submitted a written statement to the court in March 2004. The expert stated that a child of C.L.'s age would have formed a strong attachment to her parents, and opined that a change of custody from the only parents a child has known since birth would put the child at longterm emotional risk and could lead to depression, developmental delay, and disruptive behavior.

¶ 8. The court issued a written decision in July 2004. The court found that father had overcome his past difficulties, was ably parenting two children from another relationship, and had the skills and desire to parent C.L. Nevertheless, the court noted that C.L. was nearly two years old and had virtually no relationship with father or his family; that C.L. was deeply attached to the only parents and siblings she had ever known; and that any change of custody would cause long lasting emotional damage to C.L. resulting from the loss of her family. Applying the statutory factors set forth in 33 V.S.A. § 5540, the court found that C.L. was bonded with her foster family, with whom she had a close, loving relationship; that she was fully adjusted to her home, school, and community; that father had played no role in her life; and that father could not resume parental responsibilities within a reasonable period of time, as any attempted transition would be emotionally devastating to C.L., and the time required for any such change would be unreasonably lengthy measured in terms of the child's needs. Accordingly, the court concluded that termination of father's parental rights was in the best interests of the child, and granted the State's petition. This appeal followed.

¶ 9. Father contends that termination was improper absent an express finding of parental unfitness. The claim raises broader questions concerning the interests of otherwise fit biological fathers who, through ignorance of a child's existence, have established virtually no personal, custodial, emotional, or financial relationship with the child during its early development. The rights of unwed biological fathers have a constitutional as well as a statutory dimension. We have addressed both dimensions in only one modern case, In re S.B.L., 150 Vt. 294, 553 A.2d 1078 (1988), a guardianship contest between the maternal grandparents of a child born out of wedlock and her biological father (the mother had died in an automobile accident). Although we construed the relevant statutory scheme as creating no "preference in favor of the natural father of a child born out of wedlock," id. at 301, 553 A.2d at 1083, we also recognized that the United States Supreme Court—in a series of decisions culminating with Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983)—had accorded unwed biological fathers certain due process protections under the federal constitution. Lehr involved a New York adoption statute that gave notice of adoption proceedings to unwed biological fathers in certain limited circumstances, including situations where the father was identified on the birth certificate, had lived with the mother and child, or had registered with a "putative father registry." The plaintiff in Lehr qualified under none of these, failed to receive notice of his child's adoption at the age of two, and challenged the statute on due process and equal protection grounds. The high court concluded that due process accorded an unwed biological father only a limited "opportunity" interest. As the Court explained:

When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he acts as a father toward his children. But the mere existence of a biological link does not merit equivalent constitutional protection....

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.

463 U.S. at 261-62, 103 S.Ct. 2985 (internal quotation marks and citations omitted). Because the father in Lehr had not participated in the rearing of his child, the Court concluded that he had no cognizable due process interest. As for the equal protection claim, the Court held that a mother and father are similarly situated only if both have "established any custodial, personal, or financial relationship" with the child, and that a father who had "either abandoned or never established" such a relationship was not subject to invidious discrimination. Id. at 267-68, 103 S.Ct. 2985.

¶ 10. Numerous state court decisions since Lehr have explored, in a variety of contexts, the circumstances sufficient to demonstrate that an unwed biological father has grasped the "opportunity" to develop a relationship with his offspring. See generally L. Oren, The Paradox of Unmarried Fathers and the Constitution: Biology "Plus" Defines Relationships; Biology Alone...