In re K.S.

• Citation: 260 A.3d 387
• Decision Date: 02 July 2021
• Docket Number: 20-172,Nos. 20-154,s. 20-154
• Parties: IN RE K.S., Juvenile
• Court: United States State Supreme Court of Vermont

260 A.3d 387

IN RE K.S., Juvenile

Nos. 20-154

20-172

Supreme Court of Vermont.

June Term, 2021

July 2, 2021

Motion to Stay and Remand Denied July 14, 2021

Sarah Star, Middlebury, for Appellant Mother.

Thomas J. Donovan, Jr., Attorney General, and Benjamin D. Battles, Solicitor General, Montpelier, for Appellee Department for Children and Families.

Matthew Valerio, Defender General, and Marshall Pahl, Deputy Defender General, Montpelier, for Appellee Juvenile.

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

REIBER, C.J.

¶ 1. In these consolidated appeals, mother challenges decisions by the family division of the superior court denying mother's motions for an extension of time to file a notice of appeal and to vacate the order terminating her parental rights to K.S., and concluding that K.S. is not an Indian child for purposes of the Indian Child Welfare Act. We affirm.

I. Background

¶ 2. K.S. was born in February 2018. In March 2018, a relative reported that mother had "tossed" K.S. onto a bed during a family argument and that father had used excessive physical discipline on K.S.’s older brother. K.S. was later found to have a buckle fracture on her wrist, which parents were unable to explain. At the time, the family was living with three other adults in a hotel room. The Department for Children and Families (DCF) sought and obtained emergency custody of K.S. and her brother, and filed petitions alleging that they were children in need of care or supervision (CHINS). Mother and father later stipulated to the merits of the CHINS petitions. In June 2019, DCF filed petitions to terminate the parental rights of both parents to K.S. At separate hearings in June and October 2019, father and mother each stipulated to termination and entered into post-adoption contact agreements with the foster parents. At the October hearing, mother testified that she understood that she was permanently giving up her parental rights, that her decision was voluntary, and that she believed the decision was in K.S.’s best interests. The court accepted the parties’ stipulations and granted the termination petitions.

¶ 3. In December 2019, mother hired a new attorney, who filed a motion for relief from the termination order pursuant to Vermont Rule of Civil Procedure 60(b). Mother alleged that the attorney who represented her at the relinquishment hearing had rendered ineffective assistance, that the underlying facts did not support termination of mother's parental rights, and that her relinquishment was involuntary because she did not understand the proceedings. The family division held a hearing and on March 10, 2020, issued an order denying the motion. It found that mother's relinquishment was knowing and voluntary and not the result of coercion by DCF or the foster parents. The court concluded that it was not required to conduct a separate analysis of the factors in 33 V.S.A. § 5114(a), the so-called best-interests factors, when mother voluntarily relinquished her rights. It further found that mother had failed to establish that her counsel's performance was ineffective.

¶ 4. On April 2, 2020, K.S. was adopted by the foster parents with whom she had been living for most of her life.

¶ 5. On April 10, 2020, mother filed a notice of appeal from the court's decision denying her Rule 60 motion. This Court dismissed the appeal as untimely because it was filed more than thirty days after the judgment. We directed mother's attention to Vermont Rule of Appellate Procedure 4(d), which permits the superior court to extend the appeal period for excusable neglect or good cause shown.

¶ 6. Mother then filed a motion for an extension of time with the family division of the superior court. The family division found that mother failed to demonstrate good cause or excusable neglect for the untimely filing and denied the motion. Mother filed a timely notice of appeal from this order.

¶ 7. While her appeal from the extension-denial order was pending, mother filed a second motion to vacate the termination order. The family division concluded that it lacked jurisdiction to consider the motion because K.S. had been adopted, and stated that even if it had jurisdiction, it would deny mother's motion. Mother filed a timely notice of appeal from this order as well. We granted mother's request to consolidate the appeals for review.

¶ 8. Mother filed her initial appellate brief in August 2020. She argued that the family division abused its discretion by denying her request for an extension of time to appeal, erred in concluding that it lacked jurisdiction to entertain her second Rule 60 motion, erred in terminating parental rights based on her voluntary relinquishment without independently considering K.S.’s best interests, and failed to ascertain that her relinquishment was knowing and voluntary. She argued that she received ineffective assistance of counsel at the relinquishment hearing. Finally, she claimed that the termination order had to be reversed because father had reported to DCF that K.S. had Cherokee heritage, and the court had failed to give notice to the Cherokee tribes or to apply the substantive provisions of the Indian Child Welfare Act (ICWA).

¶ 9. After mother filed her brief, DCF sent notice of K.S.’s potential tribal membership and the pending termination proceeding to the three federally recognized Cherokee tribes, as well as the Regional Director of the Bureau of Indian Affairs. DCF asked this Court to stay mother's appeal until DCF received a response. Mother opposed the stay. In September 2020, we remanded the matter for the family division to consider the applicability of the ICWA.

¶ 10. On remand, mother filed an "omnibus motion" in which she: (1) argued that the court should vacate the termination order because DCF's initial failure to comply with the ICWA rendered the judgment void; (2) challenged the court's conclusion that it lacked jurisdiction to address her second Rule 60 motion; (3) asked the court to appoint new counsel for herself and K.S. and to revoke K.S.’s consent to termination on the ground that K.S.’s attorney had a conflict of interest; (4) requested parent-child contact; (5) asked the court to direct DCF to comply with the ICWA; (6) requested genetic material from K.S. and "plenary" discovery to investigate the underlying allegations in the CHINS proceeding; (7) challenged the CHINS merits stipulation; and (8) sought judgment on the pleadings or relief under Rule 60.

¶ 11. The court rejected mother's claim that the ICWA notice violation required automatic reversal of the termination order and reinstatement of parental rights or parent-child contact. The court denied mother's motions for judgment on the pleadings, for relief under Rule 60, and to revoke K.S.’s consent to termination, concluding that these matters were outside of the scope of the remand and that it lacked jurisdiction to grant relief under Rule 60 because K.S. had been adopted. It ruled that mother's motion to assign new counsel was moot because new counsel had been assigned. The court denied mother's motion for discovery regarding the CHINS proceeding as beyond the scope of the remand. It also denied her request to subpoena out-of-state records and to collect K.S.’s genetic material as not required under the ICWA. However, it granted discovery of records related to the ICWA proceeding and indicated that it would set a hearing to determine whether K.S. was an Indian child.

¶ 12. The court held a hearing on the applicability of the ICWA over two days in December 2020 and February 2021. It issued a decision in March 2021 finding that the notices sent by DCF complied with the ICWA, that DCF exercised due diligence, and that the tribes had responded that K.S. was not an Indian child of their tribes. The court concluded that K.S. was not an Indian child to whom the ICWA applied. Mother filed a timely notice of appeal from this order. This Court consolidated the new appeal with the two previous appeals.

II. Mother's Claims on Appeal

A. Motion for Extension of Time to Appeal

¶ 13. Mother first argues that the family division abused its discretion in denying her motion to extend the time to appeal its March 2020 decision denying her first motion for relief under Rule 60. Vermont Rule of Appellate Procedure 4 provides that if a party fails to timely file a notice of appeal, the party may request an extension from the superior court. V.R.A.P. 4(d). The court may grant an extension if the party files the motion within thirty days after the initial appeal period expired and shows that the failure to timely file was due to "excusable neglect or good cause." V.R.A.P. 4(d)(1). The Reporter's Notes to the rule explain that "[g]ood cause refers to situations in which there is no fault on the movant's part—e.g., failure of the Postal Service to deliver the notice of appeal," while "[e]xcusable neglect assumes fault on the part of the movant." Reporter's Notes—2006 Amendment, V.R.A.P. 4. The decision whether to grant a motion for extension of time to appeal is discretionary and we will reverse only if the court withheld discretion altogether or exercised it for "clearly untenable" reasons. Clark v. Baker, 2016 VT 42, ¶ 20, 201 Vt. 610, 146 A.3d 326 (quotation omitted).

¶ 14. In her motion for extension of time, mother attributed her untimely filing of the notice of appeal to both good cause and excusable neglect. She asserted that due to the coronavirus pandemic, she lacked access to technology that would allow her to access or print documents necessary to file an appeal and was unable to notarize documents. She stated that she had moved to Missouri for work and did not have a computer, making it difficult to access the Vermont court system. She argued that these circumstances "interfered with [her] ability to retain or consult with counsel" to pursue an appeal.

¶ 15. The family division denied the motion. It noted that although mother implied that she was pro se and had...