Kid? We kid

In re A.W., 2020 VT 34

By Elizabeth Kruska

We’ve talked about CHINS (child in need of care and supervision) and TPR (termination of parental rights) cases before. This one is a little different than some of the others we’ve seen.

Here’s how these cases go. Somehow a family comes onto the radar of DCF (Department for Children and Families). If DCF feels there’s a need to get the court involved, it files a CHINS petition, where the state has to prove by a preponderance of the evidence that at the time the petition was filed, the child was (or children were) in need of care and supervision. If that’s proven, DCF proposes a disposition plan which generally consists of: (a) a long-term goal for the family; (b) how long it’s going to take to get to that goal; and (c) what everyone needs to do to achieve that goal in that time.

If it appears a family isn’t able to be reunified and that the best interest of the child (or children) is for the children to be adopted by a new family, the state (or child(ren)) may move to terminate the parents’ parental rights so that an adoption can take place. Parents may choose to agree with this and to voluntarily relinquish their parental rights (and this happens sometimes). Or they may choose to have a hearing on the matter and require that the moving party prove its case.

And now, as it turns out, children also have the right to require that a hearing be held.

This is kind of a big deal. So often in TPR cases the focus ends up being on the conduct and abilities of the parents. And a lot of times the children agree that it is in their best interest to be able to be adopted by someone else, rather than to be reunified with parents. But sometimes the children don’t agree.

Here’s what happened here. A CHINS petition was filed in early 2019. A month or so later, the parents agreed the children were in need of care and supervision at the time the petition was filed. The plan was for the kids to reunify with one or both parents by late fall 2019. Both parents engaged in services, and as appropriate, visitation. Things seemed to be moving forward through the summer, and it seemed like everyone was on track.

Things took a turn by the fall and reunification started to look a little bit complicated. Two months later at a regular status conference the parents showed up and voluntarily relinquished their parental rights. The children—through their attorney and guardian ad litem—said they did not support the parents doing this. Initially the child’s attorney suggested the court accept the parents’ relinquishment and then make a determination about whether or not this was in the children’s best interest. The court disagreed, reasoning that if the parents relinquished voluntarily, that they were essentially conceding that this was in the children’s best interest.

So, the court engaged in an oral colloquy with the parents and accepted a written relinquishment from them. The children’s attorney disagreed and didn’t sign the written agreement. The guardian ad litem also didn’t agree, and so stated clearly on the record.

The children’s attorney sought other outcomes and urged that other litigation needed to happen, as well, because there had not been any change to the plan which, until this point, had been to reunify the kids with their parents.

The court said no, that the parents wanted to relinquish, and that’s what was happening.

The children appeal and SCOV reverses.

First off, juvenile court is all a weird creature of statute. It’s purely created by statute, and only has powers given to it by statute. The children argued on appeal that the court didn’t have the authority, by statute, to take the relinquishment when it did because the disposition order called for reunification and had not been amended. No party had moved to amend that order, so the court couldn’t really do something other than what was ordered. By statute a disposition order can only be modified by stipulation of the parties (which there wasn’t here because the kids disagreed) or by filing a motion and having a hearing on the motion (which didn’t happen here).

SCOV also rightly points out that the kids are parties in CHINS cases. So even though the parents both came in saying they wanted a certain outcome, and the State didn’t seem to disagree, there was no stipulated agreement by all the parties because the kids—a necessary party—did not agree. And therefore, the court should have held a hearing on the matter to determine whether modification of the disposition order was in the children’s best interest.

And because the modification was to terminate the parents’ rights, that would require a hearing to determine whether such termination was in the kids’ best interest, and that didn’t happen either.

The State argues a hearing was unnecessary because the parents voluntarily agreed and stated that termination was in the children’s best interest. And also, at the point the parents took this position it became a situation where there was no other available disposition alternative. The parents were apparently saying they felt it was best not to reunify with the kids.

SCOV agrees that the parents’ position carries with it a lot of weight. However, the fact of the parents voluntarily relinquishing isn’t the end of the story. The court also has to find that the termination is in the children’s best interest. In this case, because there was no agreement about that, the court necessarily would have had to have held a hearing. But it didn’t, so there could be no findings.

So, SCOV reverses and sends this case back to the trial court to have a hearing upon which the court can make best-interests findings. Of course, by the time it gets back, circumstances may have changed, and it may be that the children now agree it’s in their best interest that their parents’ rights be terminated. If that’s the case, they can probably do a stipulation on the record.