In re Guardianship of S.O., 21-106

• Docket Nº: 21-106
• Citation: 268 A.3d 49
• Case Date: November 12, 2021
• Court: United States State Supreme Court of Vermont

268 A.3d 49

IN RE GUARDIANSHIP OF S.O. (L.O. and T.O., Appellants)

No. 21-106

Supreme Court of Vermont.

September Term, 2021
November 12, 2021

Sarah Star, P.C., Middlebury, for Petitioners-Appellants.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jody A. Racht, Assistant Attorney General, Waterbury, for Respondent-Appellee Department for Children and Families.

PRESENT: Reiber, C.J., Robinson,¹ Eaton, Carroll and Cohen, JJ.

COHEN, J.

268 A.3d 50

¶ 1. Grandparents appeal from the probate division's dismissal of their petition for guardianship of S.O. They argue that: the court should have held a hearing and addressed the merits of their petition; the Department for Children and Families (DCF) violated their due process rights by moving to dismiss the petition; and if there had been a merits hearing, they would have shown that they were suitable guardians and that a nonconsensual custodial guardianship was in S.O.’s best interests. We affirm.

¶ 2. The record indicates the following. S.O. was born in July 2018 and she was taken into DCF custody shortly thereafter. S.O. has been in the same foster home essentially since birth. On October 21, 2020, S.O.’s biological mother voluntarily relinquished her residual parental rights in S.O., subject to a post-adoption contact agreement. Mother agreed that it was in S.O.’s best interests that her rights be terminated, that S.O. be freed for adoption, and that legal custody and all residual parental rights be transferred to DCF without limitation as to adoption. The court terminated father's residual parental rights the same day. Neither parent appealed from these decisions, and the orders became final on November 20, 2020.

¶ 3. Meanwhile, on October 15, 2020, grandparents filed materials in the probate division seeking a minor custodial guardianship of S.O. under 14 V.S.A. § 2623. They alleged that one or more of S.O.’s parents were incompetent or unsuitable to have custody; mother consented to the guardianship; and grandparents indicated that father's position was unknown. See 14 V.S.A. § 2622(2)(A)(ii) (defining "[c]hild in need of guardianship" in relevant part as "child who the parties consent is in need of adult care because ... [a] custodial parent's physical or mental health prevents the parent from providing proper care and supervision for the child"). Grandparents noted that S.O. was in DCF custody and that a termination-of-parental-rights hearing was scheduled for October 21, 2021. The probate-division clerk directed grandparents to file other necessary materials, which they did on October 29, 2020. Grandparents did not file a certificate of service until November 13, 2020; DCF indicated it was served with a copy of the petition on November 9, 2020.

¶ 4. Upon receiving the petition, DCF filed a motion in the family division asking it to confer with the probate division regarding jurisdiction over the guardianship petition. See 14 V.S.A. § 2624(b)(1)(A) (requiring that "custodial minor guardianship proceeding brought in the Probate Division" be transferred to "Family Division if there is an open proceeding in the Family Division involving custody of the same child who is the subject of the guardianship proceeding in the Probate Division."); id. § 2624(b)(2)(A) (providing that, when transfer of guardianship petition to family division occurs under § 2624(b)(1)(A), probate and family division judges must "confer regarding jurisdiction over the proceeding"). The family division indicated that it would do so. Grandparents, through counsel, then filed a motion several days thereafter asking the probate division to consolidate the guardianship petition with the pending family division case.

¶ 5. The family and probate division judges conferred on the record on December 1, 2020, and the family division judge issued an entry order that day recounting what was decided. As set forth in the

268 A.3d 51

order, the probate division judge would transfer the guardianship petition to the family division as required by statute and, exercising its discretion, the family division judge would transfer the petition back to the probate division for further proceedings after the pending matter in the family division was adjudicated. See id. § 2624(b)(2)(C)(ii) (authorizing this course of action). The family division judge found that this approach served S.O.’s best interests and welfare as it provided the clearest path to achieving permanency with the goal of adoption. The probate division issued a similar order summarizing the conference on December 2.

¶ 6. On December 8, grandparents requested a status conference. They asked the family division to allow them to present evidence and argument on why the guardianship petition should be consolidated with the juvenile proceeding, and they asserted that S.O.’s best interests required considering them as a permanency placement option.

¶ 7. Two days later, the family division issued an entry order transferring the guardianship petition back to the probate division. It recounted the procedural history of this case and the juvenile proceedings. It found that S.O. had been with her current foster parents essentially since birth and that she loved and was bonded with her foster parents. The family division judge determined that S.O.’s best interests were not served by consolidating the guardianship petition with the family proceeding 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 interests, family division may consider whether "the minor child has been living with and building attachments in a preadoptive foster family for a significant period of time and [whether] the proposed guardian has less of a relationship with the child," and "may transfer the guardianship petition back to the probate division for consideration after final disposition, which may be a termination of the parents’ rights that clear the way for adoption."). In transferring the petition back to the probate division pursuant to 14 V.S.A. § 2624(b)(2)(C)(ii), the family division provided copies of its orders concerning the termination of parents’ rights.

¶ 8. The probate division then scheduled a February 2021 hearing on grandparents’ guardianship petition. DCF moved to dismiss the petition, arguing that grandparents’ request could not be fulfilled because it did not fit within either type of guardianship over which the probate division had jurisdiction. DCF explained that 14 V.S.A. § 2626 required parental consent to a guardianship and parents no longer had the right to consent as their residual parental rights had been terminated. It asserted that § 2627 allowed for consideration of a nonconsensual guardianship only in situations in which a parent had not lost residual parental rights and a child needed a guardian because of parental abandonment, abuse, or neglect, and it maintained that those circumstances were clearly not present here. DCF thus argued that the guardianship petition should be dismissed without a hearing on the merits.

¶ 9. Grandparents opposed the motion. They argued that the probate division should decide their petition because it remained pending and S.O. had not yet been adopted. They maintained that S.O. was still "a child in need of guardianship" as defined in 14 V.S.A. § 2622(2)(B) because she was abused or neglected by her parents and was now "a ward of the State." Grandparents further asserted that mother's

268 A.3d 52

consent to the guardianship petition remained valid because mother consented before her residual parental rights were terminated; they argued that father "did not oppose" the guardianship petition. According to grandparents, the only question for the probate division was "whether the guardians [were] suitable, and whether the guardianship [was] in [S.O.]’s best interests."

¶ 10. The probate division granted DCF's motion to dismiss. It explained that at the time the guardianship petition was transferred back to the probate division, both parents’ residual rights had been terminated, no appeals had been taken, and all residual parental rights had been transferred to DCF. The court was unpersuaded by grandparents’ argument that S.O. remained in need of guardianship under § 2622(2). It found that neither parent was a "custodial parent" as defined by § 2622(3) at the time the guardianship petition was filed because neither was providing routine daily care and control of S.O. It further found that mother's consent to a guardianship was mooted by the termination of her residual parental rights and that father's failure to object to the petition was not the equivalent of consent. The court added that under § 2626(b), a consensual custodial guardianship required the parties to enter into a written agreement, which the court would be required to approve at a hearing on the petition, addressing the responsibilities of the guardians and the parents, the expected duration of the guardianship, parent-child contact, and parental involvement in decision-making. There could be no such agreement here because parents no longer had any parental rights...