In re K.M.M.

• Decision Date: 04 March 2011
• Docket Number: No. 10–145.,10–145.
• Citation: 2011 VT 30,22 A.3d 423
• Parties: In re K.M.M.
• Court: Vermont Supreme Court

22 A.3d 423

2011 VT 30

In re K.M.M.

No. 10–145.

Supreme Court of Vermont.

March 4, 2011.

Deborah T. Bucknam and Jennifer B. Black of Deborah T. Bucknam & Associates, St. Johnsbury, for Plaintiff–Appellee/Cross–Appellant.William P. Neylon and Jared H. Cloutier (on the Brief) of Law Office of William P. Neylon, St. Johnsbury, for Defendant–Appellant/Cross–Appellee.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.JOHNSON, J.

¶ 1. The appeal before us involves the custody of K.M.M., a child who has been a ward of her grandfather since her parents entered into a voluntary guardianship in 2001 when she was eleven months old. Despite father's petitions to terminate the guardianship, first filed in 2002, and grandfather's petitions to terminate parental rights and for adoption, there has been no resolution of this family drama for nine years. In 2009, the matter was eventually heard by the Caledonia Superior Court, on appeal from the Caledonia Probate Court. The superior court denied grandfather's petition to terminate father's parental rights but also denied father's motion to terminate the guardianship, essentially maintaining the status quo. Both parties appealed. We affirm the superior court's denial of the petition to terminate parental rights but reverse its order denying father's motion to terminate the guardianship. We remand to the family division of the superior court to implement the transfer of K.M.M.'s custody to her father.

¶ 2. The superior court's findings reveal the following history. K.M.M. is now an eleven-year-old girl whose grandfather has been her legal guardian since November 20, 2001. Father and mother voluntarily consented to the guardianship at that time because both parents had problems with substance abuse and because father was incarcerated for various criminal violations, including a conviction involving a high speed chase with police while K.M.M. was in the car.

¶ 3. Father was released from confinement in June 2002 and began to take control of his life. Although father sought termination of the guardianship as early as 2002, the Caledonia Probate Court did not act on his petition until it issued a pro forma order denying it in 2009. During the years 2002 to 2009, and despite motions and petitions from father and grandfather, the probate court, at most, attempted to work out a visitation schedule. It ordered several family studies and evaluations, but the recommendations of those studies were largely ignored because the relationship between father and grandfather prevented any cooperation between the parties. As the superior court found, it is fair to say that neither father nor grandfather has acted in K.M.M.'s best interest, and the conflict has had a negative effect on K.M.M.

¶ 4. For example, a 2006 court-ordered report from Casey Family Services assessing K.M.M.'s situation described grandfather and father's relationship as “fraught with accusations, stories of anger, hostility, physical harm, and drug/alcohol use and abuse ... going back as far ... as [father's] childhood recollections.” Furthermore, it explained that “[t]he level of mistrust in this extended family is significant” and includes anger, resentment, hostility, and lack of trust between father and grandfather. This 2006 report included a number of recommendations for father and grandfather regarding K.M.M., including that the guardianship remain intact for four more months and that, during that time, father receive intensive family-based services in the home, grandfather inform father of and invite him to medical and school meetings, and father participate in those meetings. Most of these recommendations were ignored “[b]ecause of the continuing animosity between father and son.” The superior court found that “it was clear that [grandfather] would not agree to take part in a program that might lead to the return of K.M.M. to [father's] custody.” Recommendations from a second referral to Northeast Kingdom Human Services in 2007 were similarly hindered by the conflict between father and grandfather. They refused to participate in recommended joint therapy, and grandfather would not agree to the recommended increased visitation by father.

¶ 5. Although father and grandfather have an acrimonious relationship that has resulted in a tug-of-war over K.M.M., each has a good relationship with the child. The superior court found that there was nothing in the Casey Family Services report that “[came] close to supporting” grandfather's petition to terminate father's parental rights. Rather, the reports of a case manager from Northeast Kingdom Human Services who worked with the family in 2007 indicated that the relationship between father and K.M.M. was “appropriate and loving.” It is apparent that father has successfully left his past behind. He has not been charged with a criminal offense since his incarceration, and he has stopped abusing alcohol and drugs. He is a high school graduate and has worked as a commercial truck driver. He was gainfully employed from 2006 to 2008, earning reasonable salaries. He was laid off in December 2008 due to the economic downturn and has worked odd jobs and collected unemployment. He has earned income as a logger and landscaper. He owns the mobile home in which he lives with his current partner and their son, who was born in 2007.

¶ 6. At the same time, the superior court found that K.M.M. is well-adjusted to grandfather's home and well cared for by grandfather and his partner. K.M.M. considers grandfather and his partner parent figures, trusting them and looking to them for guidance. She does well in her elementary school and attends church regularly with her grandfather and his partner. Grandfather attends to K.M.M.'s medical needs, including a chronic upper respiratory problem. K.M.M.'s medical expenses are paid for through the Vermont Dinosaur Program. Since his appointment as K.M.M.'s guardian, grandfather has received monthly financial assistance for her care through Reach Up, a program run by the Department for Children and Families. This financial assistance has totaled roughly five thousand dollars annually. While father conceded that he has not paid grandfather for K.M.M.'s care and support, the superior court agreed with father that grandfather would not have accepted money if he had offered to pay.

¶ 7. It is important to note that the various family evaluations and attempts to facilitate visitation between father and daughter were occurring in the context of ongoing attempts by grandfather to adopt K.M.M. and to terminate father's parental rights. In 2005, grandfather petitioned to adopt K.M.M. Father did not consent to the adoption, and grandfather filed a petition to terminate father's parental rights. After a hearing, the probate court denied that petition in October 2006. Thus, although father retained his parental rights, grandfather remained K.M.M.'s guardian. In November 2006, grandfather appealed to the superior court from the probate court order denying the termination of father's parental rights.

¶ 8. The matter could not be brought to conclusion because grandfather had not filed a petition in probate court to terminate mother's parental rights. He mistakenly believed that mother had executed a valid and irrevocable consent to his guardianship. After the probate court denied grandfather's petition to terminate father's parental rights, mother submitted a motion to revoke her consent. The probate court found that mother's initial consent was invalid because it violated 15A V.S.A. § 2–405(a). Grandfather did not appeal this conclusion. Rather, he found himself in superior court appealing the probate court's denial of his petition to terminate only father's parental rights. To avoid a return to probate court for a full hearing on a petition to terminate mother's parental rights, grandfather attempted a procedural workaround: he filed a petition to terminate mother's parental rights, a motion to expedite that petition, and a proposed order denying his petition to terminate mother's parental rights. The probate court allowed this maneuver and issued an order denying grandfather's petition. Grandfather appealed and attempted to consolidate his appeals in superior court. The superior court refused consolidation and dismissed the appeal regarding mother for lack of an underlying record.^*

¶ 9. Finally, in July 2009, the probate court issued a pro forma denial (without findings) of father's motion to terminate grandfather's guardianship of K.M.M. By that time, father and grandfather had agreed to consolidate the guardianship termination issue with the already-pending appeal concerning father's parental rights, and the probate court's order simply facilitated the consolidation and the de novo hearing in superior court.

¶ 10. After it received the appeal from the probate court, the superior court found father was “ready and able to exercise visitation with his daughter in a responsible way.” It ordered visitation on November 12, 2009, specifying certain weekends and holidays when K.M.M. would be with father. On December 27, 2009, grandfather invited father to a family gathering at his house, which father attended. On January 6, 2010, the parties reported that K.M.M.'s visits with father took place without incident. The court ordered additional visitation, and K.M.M. started spending all weekends with father, as well as April school vacation week.

¶ 11. In its final decision on the petitions before it, the superior court affirmed both the probate court's denial of grandfather's motion to terminate father's parental rights and its denial of father's motion to terminate grandfather's guardianship, finding that the standard for termination set forth in 15A V.S.A. § 3–504(a) had not been met. In particular, it concluded that father was not legally obligated to contribute to the support of K.M.M. and that grandfather would not have accepted any...