In re K.G.
| Docket Number | 22-AP-120,23-AP-099 |
| Decision Date | 08 September 2023 |
| Parties | In re K.G. & L.G. Juveniles |
| Court | Vermont Supreme Court |
On Appeal from Superior Court, Bennington Unit, Family Division July Term, 2023
Kerry Ann McDonald-Cady, J. (Termination of Parental Rights) Howard A. Kalfus, J. (Rule 60(b)(6) Motion)
Katina Ready of Katina Francis Ready, PLLC, Bristol, for Appellant Father, and Sarah Star, Middlebury, for Appellant Mother.
Charity R. Clark, Attorney General, Montpelier, and Jody A Racht and Julianne Woolard, Assistant Attorneys General Waterbury, for Appellee.
Matthew Valerio, Defender General, and Kerrie Johnson, Juvenile Defender, Montpelier, for Amicus Curiae for Office of the Defender General.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ.
¶ 1. In these consolidated appeals, parents challenge the termination of their residual parental rights in K.G. and L.G. and the denial of their post-termination motion to set aside the merits and disposition orders in this case under Vermont Rule of Civil Procedure 60(b)(6) based on allegations of ineffective assistance of counsel. We find it unnecessary to decide if parents have a constitutional right to effective assistance of counsel in juvenile proceedings and affirm both decisions.
¶ 2. We begin with parents' challenges to the TPR decision. Given the nature of parents' claims, we recount the procedural history of this case in detail. Mother has four children in addition to K.G. and L.G., none of whom are in her legal custody or care. At the time of K.G.'s birth in November 2019, mother had an active case plan with the Department for Children and Families (DCF) for an older child in DCF custody. As of November 2019, the disposition goal in that case was termination of mother's parental rights for lack of progress.
¶ 3. Upon K.G.'s birth, DCF filed a petition alleging that she was a child in need of care or supervision (CHINS) and she was taken into emergency DCF custody. Mother reported that father was K.G.'s biological parent. Father was served with the CHINS paperwork and named as father in the petition; he was also appointed counsel.
¶ 4. The State expressed concern for K.G.'s safety given mother's significant history with DCF and her failure to make progress over the preceding twenty-two months on the case plan for the older child referenced above. The State alleged that mother had unresolved issues around substance abuse, mental health, and lack of safe housing. Mother and father had been "couch surfing" prior to K.G.'s birth; DCF observed unsafe living conditions in the home where parents lived in late September 2019, including the absence of working heat as well as sharp implements and drugs within a child's reach. As a result, the State alleged that mother and putative father had not shown DCF they were prepared to care for a newborn, including by finding stable housing.
¶ 5. Mother had also engaged in physically abusive behavior towards the older child, did not appropriately supervise the older child, and had threatened severe violence towards other adults in the community. The State added that mother's issues had been unresolved over the course of more than eleven years and spanned multiple children. As to putative father, the State expressed concerns about substance abuse and his and mother's lack of housing, as well as noting that he ultimately had not been found to be the parent of the older child referenced above.
¶ 6. In its emergency care order, the court cited the factors above related to mother, including sibling evidence, and noted that father had not yet been determined to be K.G.'s parent. The court found that newborn K.G. needed a sober adult to care for her in a safe living environment and that she was at risk of harm in mother's custody.
¶ 7. Following several hearings, the court issued a December 2019 temporary-care order, continuing K.G. in DCF custody. Father and his attorney were present at the initial temporary-care hearing and both parents were given a plan of services in connection with the temporary-care proceeding. At the hearing, the State requested genetic testing for father without objection and father indicated he would work with DCF regarding visitation. No party sought transfer of custody to father. At a second hearing three days later, the State brought paperwork for father to sign regarding parentage but neither parent attended the hearing.
¶ 8. Following another hearing in early January 2020, the court granted the State's request for genetic testing. The court noted that the State's request had not barred father from actively participating in the case and, in its order, it allowed father to join mother during supervised visits. Father did not consistently attend the visits offered, however, and he did not engage in the virtual visits offered during the COVID-19 pandemic. On April 9, 2020, father was established as K.G.'s parent through genetic testing.
¶ 9. In July 2020, K.G. was adjudicated CHINS. Father and his attorney were present at the hearing. The court expressed its belief that father lacked standing to contest CHINS because he had not been adjudicated as K.G.'s parent at the time the CHINS petition was filed. Father's attorney did not object. The court nonetheless inquired multiple times of father if he understood what was occurring, if he had consulted to his satisfaction with his attorney, and if he had any questions. Mother did not present any evidence.
¶ 10. The State's case focused on evidence related to K.G.'s siblings and their removal from mother's care. See, e.g., E.J.R. v. Young, 162 Vt. 219, 224, 646 A.2d 1284 (1994) (). Evidence was also introduced about mother's aggravated-assault-with-a-deadly-weapon conviction and her substantiation for physically abusing the older child referenced above. Parents had been "couch surfing," and at the time of the CHINS hearing, parents were living together in father's aunt's home.
¶ 11. The court made findings on the record in support of its CHINS determination. It cited mother's failure to engage in remedial services to address her anger and mental health, which had been recommended in the CHINS case involving her older child. The court also referenced parents' unstable housing; at the time of K.G.'s birth, parents' residence had no working heat. A case plan was provided for both parents in September 2020. That same month, L.G. was born and taken into emergency DCF custody.
¶ 12. The court held a contested disposition hearing for K.G. in December 2020. DCF's proposed disposition plan contained similar service recommendations for parents as those previously identified in documents filed with the court. DCF recommended a goal of reunification with parents by June 2021. Mother sought conditional custody of K.G., which father supported. Father did not seek custody for himself. The court learned that mother left father for approximately ten days in November 2020 due to father's verbal abuse, which caused mother to seek support services and emergency housing. By December 2020, mother was again living with father and his relatives but was working to obtain a housing voucher and find a residence for herself and the children; mother was on a waitlist for a program at Lund. Mother had started mental-health counseling in September 2020 and, at that time, she was consistently visiting the children.
¶ 13. The DCF caseworker continued to recommend DCF custody based on mother's extensive history of untreated mental-health needs impacting her parenting and her very recent engagement in services. Father had completed a virtual anger-management class during the summer of 2020 but he had not completed a substance-abuse or mental-health assessment. Father became angry when DCF workers attempted to discuss the service plan with him. His attendance at visits was inconsistent.
¶ 14. The court approved DCF's proposed case plan and continued K.G. in DCF custody. It acknowledged mother's recent work on the case plan recommendations but concluded that K.G. would be at risk of harm in mother's care because mother continued to live with father, which was where the recent incident had occurred that led mother to seek emergency services and housing. The court viewed this incident in the context of other episodes where father was belligerent and aggressive toward DCF workers. Neither parent appealed the CHINS or disposition order for K.G.
¶ 15. L.G. was born in September 2020 and taken into emergency custody at birth given parents' lack of progress in addressing the issues that brought K.G. into custody ten months earlier. Father executed a voluntary acknowledgement of parentage for L.G. The court continued L.G. in DCF custody in October 2020 following a contested temporary-care hearing. It found that father's refusal to work with DCF in K.G.'s case posed a significant risk if L.G. was returned to mother's care and if parents intended to live together and coparent. The court also considered father's anger a risk factor and found that parents lacked appropriate housing for either child. The court encouraged father to engage and recommended that mother consider reunification without father. The court ordered visitation five days per week.
¶ 16. In December 2020, DCF prepared an initial case plan in L.G.'s case. In March 2021, L.G. was adjudicated as CHINS following a contested hearing. The court...
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