In re P.K., 2016-257

• Decision Date: 06 January 2017
• Docket Number: No. 2016-257,2016-257
• Citation: 2017 VT 3
• Court: Vermont Supreme Court
• Parties: In re P.K., Juvenile

2017 VT 3

In re P.K., Juvenile

No. 2016-257

Supreme Court of Vermont

December Term, 2016

January 6, 2017

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Caledonia Unit, Family Division

Robert R. Bent, J.

Michael Rose, St. Albans, for Appellant Mother.

William H. Sorrell, Attorney General, Montpelier, and Jared C. Bianchi, Assistant Attorney General, Waterbury, for Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. REIBER, C.J. Mother appeals the superior court's decision denying her motion to set aside a previous order terminating her parental rights to her daughter, P.K. Mother voluntarily relinquished her parental rights in the same proceeding in which she entered into a postadoption-contact agreement with P.K.'s paternal grandmother, with whom the child had been placed by the Department for Children and Families (DCF). After DCF removed P.K. from the paternal grandmother's home and placed her with another pre-adoptive foster family, mother moved to set aside the termination order. We affirm the superior court's denial of mother's motion.

¶ 2. P.K was born in April 2012 and adjudicated a child in need of care or supervision (CHINS) in November 2013. In January 2015, DCF filed petitions to terminate both father's and mother's parental rights. Father voluntarily relinquished his parental rights in July 2015.

¶ 3. At a hearing on October 9, 2015, mother voluntarily relinquished her parental rights after entering into a postadoption-contact agreement pursuant to 33 V.S.A. § 5124. At the outset of the hearing, the termination agreement, the accompanying affidavit in support of the agreement, a waiver of notices, and the postadoption-contact agreement were introduced and admitted as exhibits. Mother acknowledged that she was knowingly and voluntarily relinquishing her parental rights and that there was "no going back." Mother's attorney explained that mother was agreeing to relinquish her parental rights in part because of the postadoption-contact agreement and in part because a contested termination hearing might have resulted in findings that could have prejudiced her with respect to the child she was expecting.

¶ 4. The postadoption-contact agreement was signed by mother, the paternal grandmother, who was the intended adoptive parent, the DCF caseworker, P.K.'s guardian ad litem (GAL), and P.K.'s attorney. It provided that mother and P.K. would have supervised seven-hour visits once a month, as well as visits on Thanksgiving, Christmas, and P.K.'s birthday, as long as mother did not appear for the visits under the influence. Among other things, the agreement stated, in compliance with § 5124, that: (1) it would become enforceable only after mother voluntarily relinquished her parental rights, the court approved the agreement upon finding that it was in the child's best interests, and the child was legally adopted in Vermont by the adoptive parent who had signed the agreement; and (2) "the termination of parental rights cannot be undone and remains permanent, even if the intended adoption does not happen, the adoptive parent(s) do not follow the terms of the agreement, or the adoption is later dissolved."

¶ 5. Following the hearing, the superior court issued a final order terminating mother's parental rights. The order stated that: (1) mother had given considerable thought to her decisionto voluntarily relinquish her parental rights to P.K. and had done so because she believed it was in P.K.'s best interest to do so; (2) she understood that, pursuant to her agreement to relinquish her parental rights and the court's order to that effect, she would "have no further legal right to visitation and contact with [P.K.]"; (3) she further understood that the court's order "terminates all her rights of any kind to [P.K.]"; (4) she indicated that she had consulted with her attorney and was satisfied with his legal representation and advice; (5) the termination documents she submitted to the court were executed "without duress or coercion, and while [she was] competent and not under the influence of any judgment affecting substances"; (6) all parties, including P.K.'s GAL, agreed that it was in P.K.'s best interest that she be freed for adoption and that mother's residual parental rights be terminated; and (7) all parties agreed that it was in P.K.'s best interest that custody be transferred to DCF, without limitation as to adoption.

¶ 6. On December 17, 2015, P.K. was removed from her paternal grandmother's residence on an emergency basis after a neighbor reported that the then three-year-old child had been locked outside the grandmother's residence, without being appropriately dressed for the weather. The neighbor reported that the child had been told by her parents, who were "taking their medicine," to remain outside until she was called back in on the cell phone they had given her. Based on a follow-up investigation, DCF removed P.K. from the grandmother's home and discontinued the grandmother as an adoption candidate.

¶ 7. On January 22, 2016, mother filed a motion, pursuant to Vermont Rule of Civil Procedure 60(b), to set aside the October 9, 2015 termination order in the best interest of P.K. See 33 V.S.A. § 5113(a) ("An order of the Court may be set aside in accordance with Rule 60 of the Vermont Rules of Civil Procedure."). She initially argued that the termination order had been based on the parties' mistaken belief that the paternal grandmother would be the adoptive parent and would allow visitation with mother. She later supplemented that argument by asserting thatthe termination order must be set aside in the interests of justice and to allow for a new postadoption-contact agreement to become effective.

¶ 8. At an April 28, 2016 hearing on the motion, mother's attorney asked the superior court to look beyond the four corners of the agreements that mother had entered into and exercise its equitable powers to correct an injustice. DCF's attorney stated that it was "the Department's position that P.K. should continue to have a relationship with her mother and her grandmother," but that mother's visits with P.K. while the child was living with her new pre-adoptive family had been "more detrimental to P.K. than helpful." P.K.'s GAL and attorney agreed with DCF's attorney that it would not be in P.K.'s best interest for DCF to move P.K. and tell her that she would never see her mother and grandmother again. Mother's attorney argued that the court had continuing and equitable jurisdiction to do what was necessary to assure that P.K. continued to have a relationship with her mother, which everyone agreed was in her best interest. Mother's attorney stated that "the preference would be for the Court to analyze the motion on 60(b)(1) and 60(b)(6)."

¶ 9. On June 9, 2016, the superior court denied the motion, ruling that no mistake existed to permit relief under Rule 60(b)(1) and that the relief mother sought could not be justified under Rule 60(b)(6), the catchall provision. The court acknowledged that a new postadoption-contact agreement in this case appeared to be foreclosed by the statutory requirement that such agreements precede a termination order. See 33 V.S.A. § 5124(a)(2). Nevertheless, the court concluded that the remedy mother sought was precluded by the unequivocal language set forth in § 5124(b)(2)(B), which provides that, in approving a postadoption-contact agreement, the court must determine that each parent has acknowledged "that the termination of parental rights is irrevocable, even if the intended adoption is not finalized, the adoptive parents do not abide by the postadoption contact agreement, or the adoption is later dissolved." The court further concluded that, given this statutory language, the Legislature's concern with finality, and the length of timereopening this case would entail, relief under Rule 60(b)(6) was not available. While suggesting that there could be cases in which DCF's post-termination actions implicated the implied covenant of good faith and fair dealing, which might call for court action, the court found no such circumstances here.

¶ 10. On appeal, mother argues that the superior court erred by not employing available legal remedies to safeguard her ongoing relationship with P.K., which the court necessarily found to be in P.K.'s best interest in approving the postadoption-contact agreement. Mother acknowledges that relief under Rule 60(b) is unavailable because the focus of such a motion is on her rather than the best interests of the child, which is the focus of CHINS proceedings. She also acknowledges that the parties focused almost exclusively on Rule 60(b) at the hearing on her motion to vacate the termination order, but she asserts that the superior court had an independent duty to consider the child's best interests.

¶ 11. Mother contends that relief is available under 33 V.S.A. § 5113(b), which generally permits orders to be modified based on changed circumstances, due to the changed circumstances resulting from the paternal grandmother's removal as a preadoptive parent. She seeks to distinguish the facts of this case from those in In re A.W. & J.W., where we held "that § 5113(b) does not apply to an order terminating parental rights." 2013 VT 107, ¶ 12, 195 Vt. 226, 87 A.3d 508. She further contends that a protective order to safeguard her relationship with P.K. could be issued pursuant to 33 V.S.A. § 5115. DCF responds that the superior court acted well within its wide discretion in denying relief under Rule 60(b), that mother waived any argument...