In re A.M.
| Decision Date | 16 October 2020 |
| Docket Number | No. 20-097,20-097 |
| Court | Vermont Supreme Court |
| Parties | IN RE A.M. & G.M., Juveniles |
Sarah Star of Sarah R. Star, P.C., Middlebury, for Appellant Father.
Michael Rose, St. Albans, for Appellant Mother.
Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jody A. Racht, Assistant Attorney General, Waterbury, for Appellee Department for Children and Families.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. Parents appeal from the termination of their rights in A.M. and G.M., ages five and four. They challenge the court's treatment of voluntary guardianship petitions filed during the pendency of the juvenile proceedings. Mother also argues that the court erred in terminating her rights. We affirm.
¶ 2. Parents struggle with substance abuse and have been incarcerated periodically during these proceedings. In January 2018, the Department for Children and Families (DCF) filed a petition alleging that the children were in need of care or supervision (CHINS) based on parental neglect, including squalid living conditions, and parental substance-abuse concerns. The children were initially placed with their maternal grandmother pursuant to a conditional custody order (CCO), and then with mother pursuant to a CCO. In April 2018, with parents' agreement, custody of the children was transferred to DCF.
¶ 3. Parents stipulated that the children were CHINS, and following a June 2018 disposition hearing, the parties stipulated to continued DCF custody and to DCF's disposition case plan, which contemplated reunification by November 2018 or adoption. Parents were required to take various action steps to achieve reunification including actively engaging in substance abuse treatment and maintaining sobriety, submitting to random urinalysis, submitting to a mental health assessment and following treatment recommendations, signing releases to allow DCF to communicate with service providers, and maintaining a safe living environment for the children. The children did not see mother after June 2018 and they stopped seeing father before that time. As of September 2018, the children were placed together in the same foster home, where they remain.
¶ 4. Meanwhile, in July 2018, DCF moved to suspend parents' rights to parent-child contact (PCC), alleging that parents had relapsed and that they had been assaulted by third parties in their home and threatened with a gun. The court temporarily suspended PCC and parents then failed to attend a hearing on the suspension request. The court suspended parents' rights to PCC until they met with DCF and agreed to a safety plan, which would include ongoing substance abuse treatment and regular submission to urinalysis.
¶ 5. In August 2018, mother's sister and brother-in-law filed petitions in the probate division seeking voluntary guardianship of the children. After learning about the pending juvenile case, the probate division transferred the guardianship cases to the family division as required by law. See 14 V.S.A. § 2624(b)(1)(A) ().
¶ 6. The family and probate judges subsequently had a brief on-the-record conference regarding jurisdiction. See id. § 2624(b)(2)(A). Based on the conference, the minor guardianship cases were consolidated with the family division case in an October 2018 order. See id. § 2624(b)(2)(C)(ii). The petitioners in the guardianship cases were not given party status in the juvenile case but were given notice of future proceedings and allowed to attend those proceedings. The court stated that if it decided that a guardianship should be established, the guardianship cases would be transferred back to the probate division for ongoing monitoring.
¶ 7. In November 2018, DCF filed a petition to terminate parents' rights (TPR). At an April 2019 permanency planning hearing, the court discussed the guardianship petitions with the parties, who were represented by counsel, and the petitioners who were pro se. One of the petitioners was scheduled to testify at the termination hearing, which the court noted made her ongoing attendance at various juvenile hearings more complicated. The court explained that other courts in similar situations treated guardianship petitions as inactive during the TPR process with the plan that, if the TPR was denied, the guardianship petitions would be sent back to the probate division for a ruling. In that way, the proposed guardians would not need to continue attending juvenile hearings in which they basically had no role. Consistent with this approach, the court proposed issuing an entry order that revoked the consolidation order and, if there was still the potential for a guardianship after the termination hearing, sending the guardianship case back to the probate division.
¶ 8. The State agreed with this approach but father's attorney sought additional time to discuss the proposal with parents and the petitioners. Following the hearing, on May 1, 2019, the court issued an entry order as discussed. It emphasized that, if parents' rights were terminated, a transfer of the guardianship cases back to the probate division would be unnecessary as parents would no longer have any right to agree to or oppose the guardianship requests. The court informed the parties that any objection to its order must be filed within two weeks. No one objected.
¶ 9. A termination hearing was held in August 2019. The court made numerous findings, including the following. At the time the CHINS case was filed, the children were living in a filthy home; the floors were black, there was mold and bags of garbage inside, and the children had severe and chronic headlice. Parents admitted to actively using heroin. Mother continued to struggle with substance use throughout these proceedings. She attended residential treatment and an intensive outpatient treatment program early in this case, but then relapsed twice. Not long thereafter, mother had a physical fight with a neighbor and admitted that she "probably" used a bat. Mother then overdosed on drugs and was briefly hospitalized. She testified that she had been using drugs since high school, or around seventeen years. Mother did not comply with repeated requests to obtain drug testing. She was discharged unsuccessfully from an intensive outpatient program due to noncompliance. She did not follow through with recommended mental health treatment. She missed numerous visits with the children. Mother's ability to care for the children and her health steadily declined. During this time, father had little to no involvement with the children and he did not engage with DCF. He did not make progress on the action steps required of him. He was arrested and charged with burglary.
¶ 10. As indicated, the court explained that parents' PCC was temporarily suspended in July 2018 after they were attacked in their home in a drug-related incident. Parents did not appear at a hearing on the motion. By August 2018, parents had essentially dropped out of sight. They did not seek any PCC. Several months later, mother contacted the DCF caseworker and informed her she was living in a new location. The caseworker approved parents sending letters to the children and parents sent one Christmas card.
¶ 11. Parents were charged with numerous crimes during these proceedings and both were incarcerated. Mother was on furlough status at the time of the termination hearing; father remained incarcerated. At the time of the hearing, mother was living with father's grandmother, who welcomed mother and the children living with her. The court noted that mother had an upcoming surgery and would need time to recover afterward. One of the petitioners in the guardianship action also testified. She expressed her belief that mother was now capable of caring for the children. Mother testified that she had been sober for nearly a year at the time of the hearing and that she was committed to maintaining sobriety. She denied that her drug use had affected the children while they were living with her, that they had been exposed to her drug use, or that dangerous people were even in the home while the children were with her. Mother did not provide the records from her ongoing substance abuse treatment or her urinalysis results at the hearing. There was confusion about whether she had provided the necessary releases to enable DCF to obtain these records. As to the children, the court found that they were doing well in their foster home, where they had been since September 2018. The foster parents wanted to adopt the children.
¶ 12. Based on these and numerous other findings, the court concluded that parents had stagnated in their ability to parent the children and that termination of their rights was in the children's best interests. With respect to stagnation, it found that parents failed to make progress toward significant and necessary goals. Most importantly, they failed to: promptly engage in substance abuse and mental health treatment; cooperate with DCF and provide samples for urinalysis when requested; provide a safe living environment for the children that was free of substance abuse, violence, and danger; and demonstrate an ability to care for the children and meet their needs. They also failed to have an active, healthy relationship with the children. It recounted the history of this case in detail, including: father's disengagement with the case plan and the children; mother's failure to obtain substance abuse treatment sufficient to allow her to meet the children's needs; her failure to communicate with DCF or consistently attend the visits with the children that were offered; and both parents' criminal conduct and...
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In re Guardianship of S.O.
...will obviously affect what, if anything, is left to transfer back to the probate division."); In re A.M., 2020 VT 95, ¶ 20, 213 Vt. ––––, 246 A.3d 419 (affirming trial court's decision to address TPR petition before entertaining voluntary guardianship petitions where family division informe......