J.R., In re, s. 86-595
| Decision Date | 03 November 1989 |
| Docket Number | 88-277,Nos. 86-595,s. 86-595 |
| Parties | In re J.R.. |
| Court | Vermont Supreme Court |
Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Michael O. Duane, Asst. Atty. Gen., and Barbara L. Crippen, Sp. Asst. Atty. Gen., Waterbury, for plaintiff-appellee.
Ellen M. Coogan, Burlington, for defendant-appellant C.R.
Walter M. Morris, Jr., Defender Gen., and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellant R.R.
Before ALLEN, C.J., PECK and DOOLEY, JJ., BARNEY, C.J. (Ret.), and SPRINGER, District Judge (Ret.), Specially Assigned.
Two juvenile cases were consolidated for purposes of appeal. In the first case (No. 86-595), the parents of J.R. appeal from the November 1986 order of the district court that placed custody and guardianship of J.R. with the Department of Social and Rehabilitation Services (SRS) and failed to grant either parent rights of visitation. In the second case, the parents appeal the April 29, 1988 order of the district court that granted the motion of J.R. and SRS to terminate the residual parental rights of both parents. The primary appellant in both cases is C.R., mother of J.R. The father, R.R., failed to file a brief in this Court although by letter he indicated that he adopted some of C.R.'s arguments and supported the others.
C.R. makes six arguments on appeal. In No. 86-595, C.R. argues: (1) that the dispositional hearing was not held in a timely fashion as required by 33 V.S.A. § 654(b) and that therefore the district court erred in not dismissing the case; (2) that the district court's findings are not supported by clear and convincing evidence; and (3) that the district court committed error in failing to allow C.R. to offer evidence on the issue of visitation before denying her the right to visit with her daughter. We hold that the time frame of 33 V.S.A. § 654(b) is not jurisdictional and that therefore dismissal of the cause was not mandated. We hold further that the district court's findings were supported by clear and convincing evidence. We also hold it was error to deny C.R. the opportunity to present expert testimony on the issue of visitation, but we rule that this question is moot.
In No. 88-277, she argues: (1) that the district court did not have the power to terminate residual parental rights in a dispositional review hearing governed by 33 V.S.A. § 658; (2) authority for termination under an alternative statute, 33 V.S.A. § 659, cannot be present because no petition was filed as mandated by that section; and (3) assuming that the district court had the power to terminate residual parental rights, the court did not have before it clear and convincing evidence to support its decision. We hold that the district court proceeded correctly under § 658 and that it had sufficient evidence upon which to base its decision. We therefore do not reach C.R.'s second argument.
In No. 86-595, we affirm the district court's November 26, 1986, order on the issue of custody. In No. 88-277, we affirm the termination of residual parental rights as to both parents.
The basic facts underlying these cases are as follows. J.R. was sexually abused by her father on a nearly daily basis from the age of five until the age of nine. She told her mother about the abuse in understandable terms, but her mother did nothing to remedy the situation. R.R. denies that he ever abused his daughter. C.R. refuses to choose between believing her daughter or R.R. This lack of support from C.R. contributed to J.R.'s serious childhood depression and her feelings of loneliness and fear of others.
J.R. was taken into State custody in 1981. She has resided continuously in the same foster home since 1982. J.R. has had no contact with her natural father aside from occasionally seeing him at court or administrative hearings. J.R. and C.R. have had no meaningful contact since, at the latest, 1984. C.R. continues to love and wishes to visit with her daughter. J.R. has expressed a clear desire to not associate with either parent and has generally opposed visitation by the parents. The few encounters between J.R. and C.R. have been hostile and counterproductive. The parents have consistently taken the position that J.R.'s attitude toward them has been induced and encouraged by SRS and the various professionals who have been involved in the case. In the parents' view, she has been "brainwashed."
J.R. is now seventeen years old. She would like to be adopted by her foster parents before she turns eighteen.
We have addressed issues involving the most fundamental aspects of J.R.'s life three times before. * In December, 1981 the district court adjudicated J.R., then nine years old, a child in need of supervision (CHINS). In In re M.W.R. & J.L.R., 143 Vt. 6, 10, 458 A.2d 1132, 1134 (1983), we reversed the district court's order because the court relied upon unsworn deposition testimony in reaching its decision. Following the decision, the district court again found that J.R. was in need of care and supervision and on May 11, 1983 transferred legal custody of J.R. to SRS. The district court reviewed its order on May 21, 1984 and continued it. The district court also denied the parents' motion to compel SRS to permit them to visit with J.R. In In re J.R., 147 Vt. 7, 11, 508 A.2d 719, 721 (1986) (hereinafter J.R. I ), we reviewed this denial and held that the trial court had to make specific findings of fact to support its conclusion that the parents had not been unreasonably denied visitation rights. We remanded the case for a new hearing.
In In re J.R., 147 Vt. 34, 36, 509 A.2d 1012, 1014 (1986) (hereinafter J.R. II ), we affirmed the CHINS adjudication but held that findings of fact "are a prerequisite to a disposition order removing a child from its parents." Since the district court failed to make findings of fact to support its disposition order, we remanded the case again, for a new disposition hearing. Custody was to remain with SRS during the pendency of the appeal.
Following the March 28, 1986 reversal and remand of the disposition order in J.R. II, the parents moved for temporary custody of J.R. and, in the alternative, for a visitation order. These motions led to the appointment of a guardian ad litem to mediate a visitation plan, and hearings were held on the temporary visitation issue. Following these hearings, the court set a disposition hearing on July 9, 1986. C.R. responded, in part, by moving to dismiss the case because the disposition hearing was untimely under 33 V.S.A. § 654(b).
The court denied the motion and went forward with the hearing. After the hearing, the court issued a twenty-six page opinion and order based on fifty-four specific findings of fact. The order awarded custody of J.R. to SRS and directed that J.R. not be compelled to visit with her parents against her will.
The denial of the motion to dismiss the disposition case leads to C.R.'s first issue on appeal in the disposition case.
The statute on which C.R. relies provides in pertinent part:
(b) ... In the case of a finding that a child is in need of care or supervision the continuance of the hearing may be held immediately upon that finding but in no event shall the disposition hearing be held later than thirty days after the finding....
33 V.S.A. § 654(b). The delay of which C.R. complained was that between the remand in J.R. II and the disposition hearing. Both parties agree that this period exceeded thirty days.
The trial court denied the motion to dismiss stating:
There was an immediate concern that was presented by both parents of wanting to initiate visitation right away. Given the remand, there was serious concern as to whether the juvenile would obey any order of the court and whether the juvenile would even consent to seeing the parents under any circumstances. It was with agreement of the parties that the court suggested that we try to work out interim visitation by the appointment of [a guardian ad litem] to work with the child to build that type of a temporary visitation situation. [W]e consumed a substantial period of time in attempting to do that. My primary concern was, and I like to think that is the primary concern of those who were working on it at the time, was to ... establish contact between the parents notwithstanding that a disposition down the road could conceivably result in custody with SRS.
... I think that if we elevate the form of a time frame over the substance of what we are doing here, it would not be consistent with what the juvenile statutes have in mind and what the Supreme Court has in mind. [W]hile admittedly we may have deferred immediately convening a disposition hearing to make an attempt at family reunification, I think that had it been successful, it would have been more a preferable outcome than simply scheduling a hearing for a full blown disposition hearing within 30 days or otherwise.
We agree with the trial court that the "delay" between the remand and the disposition hearing is not cause to dismiss the CHINS case. We do not believe that the time limit in § 654(b) is jurisdictional so that failure to meet the time limit, for whatever reason, must result in dismissal of the juvenile case. Generally, we will not imply such a consequence into a legislatively established time limit--that is, we require that the Legislature specify such an extreme consequence. See In re Mullestein, 148 Vt. 170, 173-74, 531 A.2d 890, 892-93 (1987). In the early case of Warner v. Mower, 11 Vt. 385, 394 (1839), this Court announced the general rule that where the statute is merely "directory"--that is, directs the manner of doing something, but is not the essence of the authority for doing it--compliance with the manner is not considered essential to the validity of the proceeding. There is nothing in the statute providing authority for the disposition order, 33 V.S.A. § 656, to suggest that the order is valid only if...
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