Boisvert v. Harrington
Annotate this Case
Boisvert v. Harrington (99-523); 173 Vt. 285; 796 A.2d 1102
[Filed 25-Jan-2002]
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,
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.
No. 1999-523
Julie A. Boisvert Supreme Court
On Appeal from
v. Bennington Superior Court
Ronald and Sheila Harrington November Term, 2000
Richard W. Norton, J.
Mary Welford, Manchester, for Plaintiff-Appellant.
Jonathan M. Cohen, Bennington, for Defendants-Appellees.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J. Mother Julie A. Boisvert appeals from an order of the
superior court denying her motion to terminate a guardianship over her
minor son, Kelsey Harrington, and ordering an evidentiary hearing on the
issue. Mother contends: (1) the guardianship was freely revocable and,
therefore, the court erred in ordering an evidentiary hearing; and (2) the
court violated her constitutional rights as a parent, and her
constitutional right to due process. We affirm.
This case concerns a twelve year old boy whose grandparents have
served as his court-ordered guardians since he was thirteen months old.
The underlying facts are not well developed because the matter was
appealed before an evidentiary hearing, as ordered by the probate and
superior courts, could occur. Certain facts, however, are undisputed. The
child was born in November 1988. Mother was not married to the child's
father and he has since died. In January 1990, mother petitioned the
probate court to appoint her mother and step-father, Sheila and Ronald
Harrington, as guardians for the boy. Finding that a transfer of custody
was "in the best interest of the child," the court granted the petition.
In 1996, mother was incarcerated for two months. Since that time, the boy
has resided primarily with the Harringtons, and has not had contact with
mother since August 1997. Mother acknowledges that after her release
from prison, she abducted the minor and was charged with custodial
interference.
We note, as well, the extensive probate court record in this case
(which we may judicially notice) which contains numerous status reports
and two psychological evaluations by a court-appointed clinical
psychologist, one submitted to the court in January 1998 and a second in
August 1999. These records evidence a high level of family conflict and a
troubled relationship between the minor and mother, resulting in a court
order requiring that visits between the minor and mother be supervised.
In February 1999, mother moved again to terminate the guardianship.
She argued that because she had consented to the guardianship under 14
V.S.A. § 2645(4), it should be freely revocable without the necessity of
an evidentiary hearing or any showing that revocation was in the best
interests of the minor. (FN1) The probate court ruled that termination of
the guardianship was governed by 14 V.S.A. § 3003 and § 3004, which
require a hearing to determine if the parent is then
the proper person to have care and custody of the child. (FN2) The
probate court thus denied the request for automatic revocation and ordered
an evidentiary hearing. Mother appealed to the superior court, which
upheld the decision of the probate court, ruling that the probate court has
"inherent authority over a guardianship created under its authority . . .
regardless if the guardianship was a voluntary or involuntary one." The
court concluded that the original guardianship order had found mother to
be "unsuitable," and thus the hearing procedures for terminating a
guardianship under § 3003 and § 3004 were appropriate. This appeal
followed.
Before we address the merits of the appeal, we clarify the basis for
our jurisdiction. Following its decision, the superior court remanded the
case to the probate court to conduct an evidentiary hearing. Thus, there
is no final judgment in the case because that decision did not resolve the
controversy between the parties. See Huddleston v. Univ. of Vt., 168 Vt.
249, 251, 719 A.2d 415, 417 (1998). Under these circumstances, mother's
proper recourse should have been to request permission to take an
interlocutory appeal pursuant to V.R.A.P. 5(b), which she failed to do.
According to V.R.A.P. 2, however, we have discretion to suspend
"application of Rule 5 where dismissal would most likely result in another
appeal after remand, the merits of the question of law were fully briefed
and argued, and the Court has expended valuable time on the case." In re
Smith, 169 Vt. 162, 167, 730 A.2d 605, 609 (1999). Given that these
requirements have been met in this case, we entertain this appeal under
V.R.A.P. 2.
In denying mother's request to revoke the guardianship, the lower
courts based their decisions on their interpretation of Vermont's
guardianship statutes. There are five statutory devices for creating a
guardianship:
1) When the minor has no parent living authorized to act as
guardian; or
2) When the parent is under guardianship or shown to be
incompetent or unsuitable to have the custody of the person of
the minor; or
3) When the parent of the minor resides without the state and has
so resided for three years and has not contributed to the minor's
support during such time . . .; or
4)When no parent objects and transfer of custody is in the best
interest of the minor . . .; or
5) When the minor has a parent living and the minor is the owner
of real or personal property .
14 V.S.A. § 2645. (FN3)
There are also express statutory provisions for the termination of a
guardianship issued under § 2645(2) (when the parent is shown to be
"incompetent or unsuitable"), see 14 V.S.A. §§ 3003, 3004, but the
statutes are silent on the termination of court-ordered guardianships under
14 V.S.A. § 2645(4) ("when no parent objects and transfer of custody is in
the best interest of the minor"). This tells us little in itself. Prior
to the enactment of § 2645(4) in 1982, see 1981 (Adj. Sess.) No. 153 § 1,
the statute contained only the equivalent of § 2654(2) for the appointment
of guardians in cases of parental incompetence or unsuitableness, and the
revocation statute not surprisingly
addressed only this circumstance. When § 2645(4) was added, the Legislature
failed to adopt a parallel amendment establishing procedures or standards
for revocation of guardianships established under the new provision.
The omission does not, however, leave us entirely without legislative
guidance. As noted, prior to the addition of § 2645(4) to the
guardianship statute, it contained a provision for appointment of a
guardian upon a showing that the parent was incompetent or unsuitable, and
a parallel provision for revocation of the guardianship if, after a
hearing, the court "is of the opinion that the parent is then a proper
person to have the care and custody of the child." 14 V.S.A. § 3004.
Having provided for a hearing on the merits of revocation when the parent
has been found "incompetent or unsuitable" under § 2645(2), it is
reasonable to assume that the Legislature intended a similar hearing when
custody was transferred in the "best interest of the minor" under §
2645(4). In either case, revocation would be contingent upon a finding,
after hearing, that the circumstances which precipitated the transfer of
custody no longer obtained.
Mother emphasizes the statutory requirement that she not "object" to
the guardianship under § 2645(4), a requirement not present under §
2645(2). This alone does not suggest that she may revoke the guardianship
at her whim. The statute also requires a finding that the transfer of
custody be in the "best interest of the minor." It stands to reason that,
in revisiting its previous ruling, a court should be persuaded that the
guardianship is no longer in the child's best interest. Certainly this
appears to be more consistent with the legislative scheme than automatic
revocation.
It is also more consistent with child custody and guardianship law as
a whole. It is fundamental that the State's paramount and indefeasible
duty in custody determinations is to
safeguard the welfare of the child. As we explained in Paquette v.
Paquette, 146 Vt. 83, 90, 499 A.2d 23, 28-29 (1985):
[T]he courts of this state have long recognized that, even in
those early days when custody of a child was viewed as a form of
property right, "the natural right of the father to the custody
of his child cannot be treated as an absolute property right, but
rather as a trust reposed in the father by the state as parens
patriae for the welfare of the infant."
Id. (quoting Bioni v. Haselton, 99 Vt. 453, 457, 134 A. 606, 607 (1926)).
Nowhere is this more evident than in the guardianship context. In
this, as in most states, the probate court essentially exercises a
continuing jurisdiction over both the guardian and the ward, and may
suspend the guardian for a failure to perform his or her statutory duties.
See 14 V.S.A. § 3011 (when guardian fails to perform duties, court may
suspend guardian and appoint special fiduciary). Indeed, in appointing a
guardian the court assumes the primary responsibility to protect the minor
or others who are unable to care for themselves. "In reality the court is
the guardian; an individual who is given that title is merely an agent or
arm of that tribunal in carrying out its sacred responsibility."
Kircherer v. Kircherer, 400 A.2d 1097, 1100 (Md. 1979); see also In re
Carstens' Guardianship, 37 N.W.2d 581, 584 (Neb. 1949) (guardian is "an
officer of the court," which enjoys "broad judicial discretion in the
matter of removal or refusal to remove a guardian"); Clendenning v. McCall,
60 N.E.2d 676, 681 (Ohio 1945) ("A guardian is an officer of the court
appointing him . . . . A guardian appointed by a court . . . is always
under the court's control and is subject to its directions and
supervision."). Thus, interpreting the statute to divest the court of its
plenary authority to continue or revoke a guardianship - and place that
authority instead in the parent who was removed from custody - would
represent a fundamental break with traditional common law
principles. See Swett v. Haig's, Inc., 164 Vt. 1, 5, 663 A.2d 930, 932
(1995) (statutory language of uncertain meaning will not be construed to
change or abrogate common law rules).
Mother cites no authority to support the concept of a "freely
revocable" guardianship, nor has our research disclosed any case law or
statutes embodying such a scheme. On the contrary, while the cases
uniformly acknowledge a presumption in favor of parental custody, all
recognize that the presumption may be overcome through an evidentiary
showing that continuation of the guardianship remains in the child's best
interest. In In re Williams, 869 P.2d 661 (Kan. 1994), for example, the
trial court not only held an evidentiary hearing on the mother's petition
to terminate the guardianship over her son, but took "considerable
testimony" on the respective parenting abilities of the mother and the
guardian, and denied termination of the petition. Id. at 663. Although
the Kansas Supreme Court ruled that the trial court had erred in failing
to apply a parental preference, there was no suggestion by the court that
the mother was entitled to automatic revocation. Similarly, in In re R.B.,
619 N.E.2d 952, 955 (Ind. Ct. App. 1993) the trial court made specific
findings that demonstrated "ample support for the decision...that it was
in R.B.'s best interest to be in [his mother's] custody." The governing
statute provided that a court may terminate a guardianship if the
guardianship is "no longer necessary for any reason." Id. at 954
"Because sufficient evidence was presented to the effect the guardianship
was no longer necessary," the statute was satisfied. Id. In In re
Stewart, 369 N.W.2d 820, 824 (Iowa 1985), the court observed that the
parental preference doctrine was not the "controlling factor." Rather,
"[a]s in all child custody matters the first and governing consideration
must be the best interest of the affected child." Id.
In all of these cases, the courts recognized certain fundamental
principles: that the proper inquiry in a termination of guardianship
proceeding is the best interests of the minor; that there is a
presumption the minor's best interests lie with parental custody; and that
the burden is on the party opposing revocation to overcome this
presumption. None, however, supports the proposition that the
guardianship is "freely revocable" at the will of the parent. On the
contrary, to recognize these principles is to acknowledge that they must
apply in some evidentiary setting in which the non-parent carries the
burden. This precludes, by definition, the concept of revocation at will.
Moreover, the parental preference doctrine is only that - a preference
- an advantage given to parents over other persons. It does not answer
the question of what is in the child's best interest.
The day is long past in this State, if it had ever been, when
the right of a parent to the custody of his or her child, where
the extraordinary circumstances are present, would be enforced
inexorably, contrary to the best interest of the child, on the
theory solely of an absolute legal right. Instead, in the
extraordinary circumstance, when there is a conflict, the best
interest of the child has always been regarded as superior to the
right of parental custody. Indeed, analysis of the cases reveals
a shifting of emphasis rather than a remaking of substance. This
shifting reflects more the modern principle that a child is a
person, and not a subperson over whom the parent has an absolute
possessory interest. A child has rights too, some of which are
of a constitutional magnitude.
Bennett v. Jeffreys, 356 N.E.2d 277, 281 (N.Y. App. Div. 1976) (quoted with
approval in Paquette v. Paquette, 146 Vt. 83, 88-89, 499 A.2d 23, 28
(1985)).
Finally, mother suggests that an inquiry into the minor's best
interests would violate her parental or due process rights because there
is no assurance that the initial guardianship proceeding was accompanied
by adequate procedural safeguards. See Rutherford v. Best, 139 Vt. 56, 63,
421 A.2d 1303, 1307 (1980) (when probate proceeding is used to separate
parent and child, "fundamental fairness requires that an adequate record
be prepared and that the probate judge make findings, so that on appeal to
this Court, we can determine whether the record supports the findings
and whether the findings support the judgment"). The answer to this
concern is simply for probate courts in § 2645(4) guardianship proceedings
to ensure that the parents are aware of their rights, and that an adequate
record and findings are prepared. Although the record of the initial
guardianship proceeding in this case was apparently not available for
review, it is undisputed that the probate court made an express finding
that the guardianship was in the best interests of the minor, and there is
no indication that the finding was unsupported by the evidence or that
mother was denied due process. See State v. Brown, 165 Vt. 79, 87, 676 A.2d 350, 355 (1996) ("presumption of regularity" attaches to prior
judicial proceedings).
The right to care for one's children is a fundamental liberty
interest, recognized and protected by this and the United States Supreme
Court. See Stanley v. Illinois, 405 U.S. 645, 651 (1972); Rutherford, 139
Vt. at 60, 421 A.2d at 1306. Thus, a parent who seeks to revoke a
guardianship under § 2645(4) enjoys a presumption that his or her custody
is in the child's best interest. However, nothing in our constitutional
or statutory scheme, the common law, or general practice supports the
proposition that the guardianship is terminable at will. Where, as here,
the current guardians and the minor's court-appointed attorney oppose
revocation, the court must be free to order an evidentiary hearing to
determine whether granting the petition is in the best interests of the
child. (FN4)
This decision does no violence to the parental preference doctrine; it
does not grant guardians greater rights than a natural parent. (FN5) What
it does, is recognize that when a petition for guardianship was brought
before it, a court of law agreed with a natural parent and made a
determination that the child would be better off with someone other than
the parent as guardian. The court then assumed primary responsibility for
the child. The dissent's approach would permit a parent who relinquished
guardianship of their child to revoke the court's order transferring
guardianship and resume their role as parent without any evaluation by the
court of what this change might do to the child's well-being or best
interests. This denigrates the role of the probate court and reduces its
determinations to a mere piece of paper.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. As discussed more fully below, § 2645(4) provides for appointment of a
guardian for a minor "[w]hen no parent objects and transfer of custody is
in the best interest of the minor."
FN2. Section 3003 provides that when, "by reason of the incompetency or
unsuitableness of a parent," another person has been appointed guardian,
the parent may at any time file a motion for removal of the guardian, and
the court shall schedule a hearing on the matter. Section 3004 provides
that the court may revoke the guardianship if, after hearing, it is "of the
opinion that the parent is then a proper person to have the care and
custody of the child."
FN3. Although the lower courts construed the guardianship order in this
case to create a guardianship under § 2645(2) (when the parent is shown to
be "incompetent or unsuitable"), this conclusion is unsupported by the
record, which shows that it was created under § 2645(4) (when "no parent
objects and transfer of custody is in the best interest of the minor"). The
superior court relied on a finding of the probate court in its 1990 order,
which stated: "The mother is presently unable to provide adequate and
proper care." The court construed this to represent a finding that mother
was an "unsuitable parent" under § 2645(2), although the probate court
never used this language. The guardianship petition was brought under §
2645(4), and the court's express finding that a transfer of custody was
"in the best interest of the child" compels the conclusion that the
petition was granted on the basis in which it was brought.
FN4. Where the guardians choose not to oppose revocation, but the
circumstances otherwise raise concerns about the welfare of the child, the
court may appoint counsel for the child and a guardian ad litem - if they
have not been previously appointed - to investigate the circumstances, and
may then determine whether an evidentiary hearing is necessary. See
V.R.F.P. 6(c)(2) (authorizing appointments by probate court). The mere
fact that the guardians acquiesce in the parental petition to revoke does
not, however, compel the court to grant the petition. As noted, the court
retains inherent authority over guardianships created under its auspices,
and the ultimate responsibility to ensure that revocation is in the
child's best interests. That responsibility cannot be delegated to the
current guardians, or to anyone else.
FN5. And it, in no way, disturbs our holding or rationale in In re S.B.L.,
150 Vt. 294, 553 A.2d 1078 (1988) as suggested by the dissent. In re
S.B.L. was an initial custody dispute between the father of a child born
out of wedlock and a grandparent. What is at issue here is the assertion
by a parent that she may unilaterally revoke or overturn a probate court's
decision, an issue not presented in In re S.B.L..
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Concurring and Dissenting
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,
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.
No. 1999-523
Julie A. Boisvert Supreme Court
On Appeal from
v. Bennington Superior Court
Ronald and Sheila Harrington November Term, 2000
Richard W. Norton, J.
Mary Welford, Manchester, for Plaintiff-Appellant.
Jonathan M. Cohen, Bennington, for Defendants-Appellees.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
JOHNSON, J., concurring in part and dissenting in part. A child may
not be kept from his parent by a non-parent unless the parent has been
determined to be unfit. Although the majority agrees that there has been
no finding of unfitness in this case, it holds that a mother who
voluntarily relinquished her son to her parents at a time when she was
unable, not unfit, to care for him may not have the child back without
proving that the change of custody is in the best interests of the child.
In so holding, the majority has ignored recent Vermont precedent holding
to the contrary and has fashioned a standard for terminating a voluntary
guardianship that ignores mother's fundamental right to a relationship
with her child, as protected by the due process clause. U.S. Const. amend.
V.
Accordingly, I concur in the judgment remanding the matter for a hearing,
but I respectfully dissent from the majority's best interests standard.
I.
The majority paints a version of the facts in this case on the basis
of its judicial notice of the probate court record, inferring a high level
of family conflict and a troubled relationship between the minor and
mother, based on the number of docket entries and two psychological reports
in the file. The implication from this discussion, which has no relevance
to the legal issue at hand, is that mother was unfit when the voluntary
guardianship was created or is unfit now. Because we all agree this was
a voluntary guardianship, however, we have no evidence to judge why mother
entered into it. If we were to fill in the story with mother's version of
the facts from her appellate brief, a different picture emerges.
Mother, age 19, and son Kelsey lived with mother's parents after
Kelsey's birth in 1988. Mother petitioned the probate court to have the
guardianship established in 1990. Mother then married Gaston Boisvert,
and mother and Kelsey moved out of the grandparents' house and lived with
Gaston Boisvert as a family, although Kelsey continued to visit his
grandparents on weekends. This arrangement continued until February of
1996 when Mrs. Boisvert was incarcerated for 60 days. At that time, Kelsey
was seven years old. When she was released, she attempted to resume
custody of Kelsey. Apparently, her parents objected, and Mrs. Boisvert
was charged with custodial interference because she refused to return
Kelsey to his grandparents. Since that time, Kelsey has lived with his
grandparents, and visits with mother had to be set up through the probate
court. Mother alleges that the grandparents were uncooperative with the
visits.
In an attempt to regain custody, mother filed a pro se petition to
terminate the guardianship in April of 1996. The court refused to
terminate the guardianship on the ground that it was not in the child's
best interest. The next two and one-half years, as mother alleges, were
"consumed" with her attempts to maintain contact with her son. On
February 11, 1999, with the assistance of counsel, she moved to terminate
the guardianship once again, which eventually resulted in the appeal we
have before us.
If we were to accept mother's version of the story, we might infer
that mother, at age 19 and hardly emancipated, was pressured to create
the guardianship by her parents, and that any conflict between mother and
minor does not result from mother's unfitness, but has been created by the
grandparents' intentional interference in that relationship. But, I do not
begin to suggest that we accept either the majority's inferences from the
facts or the facts according to mother's brief. I present them to
emphasize why, when two very different scenarios can be reasonably inferred
from this case, we should not be speculating about the facts, but dealing
with mother's legal status. That legal status is that mother entered into
a voluntary guardianship, and that she has not been determined in any
court of law to be an unfit parent.
II.
The right to care for one's children is a fundamental liberty interest
that has long been protected by both the United States Supreme Court and
this Court. See Troxel v. Granville, 530 U.S. 57, 65 (2000) ("The liberty
interest . . . of parents in the care, custody, and control of their
children-is perhaps the oldest of the fundamental liberty interests
recognized by this Court."). In Santosky v. Kramer, 455 U.S. 745, 753
(1982), the United States Supreme Court reaffirmed the Court's historical
recognition of parents' fundamental liberty interest in the care, custody
and
management of their children, even when they have not been model parents or
have lost temporary custody of their child to the State. The Court held
that parents were entitled to a clear and convincing evidence standard of
proof when the termination of their parental rights were at stake. It
relied on a series of decisions holding that "freedom of personal choice in
matters of family life is a fundamental liberty interest protected by the
Fourteenth Amendment" to the Constitution of the United States. Id. See
Lassiter v. Department of Social Services, 452 U.S. 18 (1981); Moore v.
East Cleveland, 431 U.S. 494, 499-500 (1977); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, (1944);
Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); Meyer v.
Nebraska, 262 U.S. 390, 399 (1923). See also M.L.B. v. S.L.J, 519 U.S. 102, 119-120, (1996); Skinner v. Oklahoma, 316 U.S. 535, 541 (1941).
In recognition of the fundamental nature of the underlying rights, the
Court has given other procedural due process protections to the
termination of those rights. It held in Stanley that the Due Process
clause of the Fourteenth Amendment prevents the state from presuming the
unfitness of an unwed father. 405 U.S. at 657. Therefore, a hearing is
required before children may be taken from such a parent. Id. In M.L.B.,
519 U.S. at 120, the Court held unconstitutional a state statute requiring
an indigent parent in a termination proceeding to pay record preparation
fees in advance of filing an appeal from an adverse determination. It
noted the Court's unanimous view that " 'few consequences of judicial
action are so grave as the severance of natural family ties.' " 519 U.S. at
119 (quoting Santosky, 455 U.S. at 787 (Rehnquist, J., dissenting)).
Relying in part on Stanley, we have held that any hearing under the
involuntary guardianship statute, 14 V.S.A. §2645(2), must contain full
procedural safeguards attendant to a proceeding that implicates such
fundamental interests. Rutherford v. Best, 139 Vt. 56, 62-63, 421 A.2d 1303, 1307
(1980). Furthermore, the substantive showing required to prove a parent
unsuitable is considerable. In Rutherford, we established that proving a
parent "unsuitable" required a showing that "the child has been abandoned
or abused by the parent, or that the child is without proper parental care
or subsistence, education, medical or other care necessary for his
well-being." Id. at 61, 421 A.2d at 1306. (FN1)
In this case, it is beyond dispute that none of the procedural or
substantive hurdles required by the Constitution for separating a child
from his mother because of parental unfitness were met at the original
guardianship hearing in 1990 because the guardianship was voluntary. (FN2)
Therefore, the question for decision is how mother, a fit parent,
terminates a voluntary guardianship and assumes custody of her son.
There is no statutory procedure to terminate a voluntary guardianship,
that is, a guardianship not based on the unfitness of the parent. (FN3)
The majority concludes from this gap in the statutes that the Legislature
must have intended that a parent petitioning to terminate a voluntary
guardianship should be required to prove not only that she is a fit parent,
but that the transfer of custody is in the child's best interest. It
reaches this conclusion by rewriting the guardianship statute and erasing
any distinctions the Legislature has actually expressed between types of
guardianships. See 14 V.S.A. §§ 2645(1)-(5) (subsections creating
separate guardianships for different situations). (FN4)
As a matter of statutory construction, the majority opinion goes too
far. It has fashioned an entirely new statute that cannot be justified
under any view of our powers to interpret and effectuate the Legislature's
intent. It is sometimes necessary for courts to imply a statutory term
where the statute is deficient, but the term supplied must be more than
"advantageous or convenient" to the major power conferred, and it is
"never permitted to contradict the act" involved. N. Sutherland, Statutes
and Statutory Construction, § 55:03 at 386 (6th ed. 2000); see In re United
Mo. Bank of Kansas City, 901 F.2d 1449, 1457 (8th Cir. 1990). But that
error pales in significance to the fact that the majority has created a
statute that is unconstitutional. See In re S.B.L., 150 Vt. 294, 305, 553 A.2d 1078, 1085 (1988) (parent's due process rights require that he be
determined to be unfit in contest with third party non-parent); In re
Guardianship of Williams, 869 P.2d 661, 665-66 (Kan. 1994)(citing prior
decision in Sheppard v. Sheppard, 630 P.2d 1121 (Kan. 1981), cert. denied
455 U.S. 919 (1982)), holding unconstitutional Kansas statute that
permitted non-parent, with consent of a legal custodian after divorce, to
disregard the parental preference doctrine and obtain legal custody). The
majority's newly created statute is unconstitutional because it takes no
account of mother's constitutional right to raise her child, and it
completely overlooks our decision in S.B.L..
In S.B.L., we decided the crux of the issue in this case-how the
constitutional right of a parent to a custodial relationship with her
child is protected in a contest between the parent and a third party who
seeks guardianship of the child. There, we concluded that "granting
guardianship to a third person in preference to a parent who has
demonstrated a commitment to parenthood based solely on a judicial
determination of the best interests of the child-without first requiring
the third party to demonstrate that the parent is unfit-denies the natural
parent due process of law." Id. at 305, 553 A.2d at 1085 (emphasis
added). In S.B.L., a biological father of a child born out of wedlock
sought custody from S.B.L.'s grandfather after the death of the child's
mother in an automobile accident. Because he was not married to S.B.L.'s
mother, the father was unable to take advantage of a statute, 14 V.S.A.
2641, declaring the father and mother, if competent, the joint guardians of
a "legitimate minor child." On the basis of this statute, this Court
would have held that biological parenthood, without more, did not provide
the father with the rights of a parent under the guardianship statute, 14
V.S.A. 2645, and therefore the father had no greater right to the child
than the grandparent. But the facts in S.B.L. demonstrated that the
father had lived with the child and his mother for the first six months of
the child's life. In view of his "demonstrated commitment" to the
child, under the holding in Lehr v. Robertson, 463 U.S. 248 (1983) (unwed
father must demonstrate commitment to child to obtain due process
protection of relationship), we recognized the father's fundamental right
to the care and custody of his child as against a third party, including a
grandparent. S.B.L., 150 Vt. at 305, 553 A.2d at 1085. Therefore, because
the father was fit, his rights were primary to the grandfather's and we
affirmed the award of custody.
The decision in S.B.L. reflected the recent developments in
constitutional law defining the rights of fathers of children born out of
wedlock. Id. at 303, 553 A.2d at 1084. Therefore, the language in the
S.B.L. holding requiring a "demonstrated commitment" to parenthood was the
bridge, under Lehr, to give the same rights to the unwed father in S.B.L.
that mothers have long enjoyed under the common law and the Constitution.
Id. at 305, 553 A.2d at 1085. In the case at bar, however, no
demonstrated commitment to the child is necessary for the mother to invoke
her constitutional right to raise her child. As we noted in S.B.L., we
must apply a "constitutional gloss" to our interpretation of the
guardianship statutes, 150 Vt. at 306, 553 A.2d at 1086, and therefore a
third party guardian may not be appointed for the child under § 2645
without proof of the requisite grounds under the standard adopted in
Rutherford v. Best, i.e., substantial proof of unfitness.
Not surprisingly, the right of parents to custody of their own
children versus grandparents to whom children have been voluntarily and
temporarily relinquished is a familiar scenario. Several states are in
accord with our decision in S.B.L. (FN5) In Williams, 869 P.2d at 670, the
Kansas Supreme Court held that a mother who had not been found unfit was
not required to show that a change of
custody would materially promote the welfare of her minor child before she
could regain custody. The mother was entitled to the application of the
parental preference doctrine, which incorporates the unfitness standard,
such that when the custody dispute is between a parent and a third person,
the parent prevails unless unfit. Id. at 669. The Williams decision was
based on a previous decision of the Kansas court in Sheppard, 630 P.2d 1121, which provided persuasive authority for S.B.L., holding
unconstitutional a Kansas statute that permitted any person having actual
physical custody of a child with the consent of the legal custodian to be
awarded custody, notwithstanding the parental preference doctrine. In
striking down the statute, the Kansas court held:
[T]hat a parent who is not found to be unfit, has a fundamental
right protected by the Due Process Clause of the United States
Constitution, to the care, custody and control of his or her
child, and that the right of such a parent to custody of the
child cannot be taken away in favor of a third person, absent a
finding of unfitness on the part of the parent.
Sheppard, 630 P.2d at 1128.
In a recent decision by the Florida Supreme Court, Richardson v.
Richardson, 766 So. 2d 1036 (Fla. 2000), the court struck down a statute
providing that where a child is residing with a grandparent, a court may
recognize grandparents as having the same standing as parents for
evaluating what custody arrangements are in the best interests of the
child. The court held the statute was unconstitutional because it equated
grandparents with parents based solely on a best interests standard,
thereby interfering with a natural parent's fundamental right to rear his
or her child. Id. at 1039-40. See also In re Guardianship of Stewart,
369 N.W.2d 820, 823 (Iowa 1985) (father who had voluntarily relinquished
custody of his daughter to her maternal grandparents custody retained a
presumptive right to custody that grandparents bore the burden of
overcoming); Bezio v.
Patenaude, 410 N.E.2d 1207, 1214 (Mass. 1980) (whether parents make
informal arrangements for the custody of their children or use the formal
guardianship process "[n]atural parents should be denied custody only if
they are unfit"); In re Ruth J. v. Beaudoin, 389 N.Y.S.2d 473 (N.Y. App.
Div. 1976) (mother who had voluntarily relinquished her daughter to the
care and custody of the State did not have to prove she was then fit to
take care of her child or to show that the return of the child from foster
care was in the child's best interests in order to obtain custody). See
Annotation, Award of Custody of Child Where Contest is Between Child's
Mother and Grandparent, 29 A.L.R. 3d 366 (Supp. 2001) (citing numerous
cases for the rule that mother is entitled to custody of child absent
unfitness, abandonment, or extraordinary circumstances).
Thus the best interests standard proposed by the majority vests rights
in the guardians to the guardianship where these rights simply do not
exist. See Barstad v. Frazier, 348 N.W.2d 479, 482 (Wis. 1984) (" 'the
best interest of the child is not the proper standard in custody disputes
between a natural parent and a third party"). (FN6) A guardianship is, by
its nature, a temporary arrangement, and the guardians are caring for the
ward in place of the court. The majority's standard would require the
court to find that there is something currently undesirable about the
guardianship for the child, not just that mother is a fit parent. In
fact, this imposes a more rigorous standard than that statutorily required
to terminate an involuntary guardianship created under § 2645(2).
According to 14 V.S.A. § 3004, a parent who has previously been found
unsuitable may regain custody of her child by
proving that the parent is "then a proper person to have the care and
custody of the child." This standard properly focuses the court's inquiry
on the parent, not on the merits of the guardianship, which is irrelevant.
It should not be more difficult for a mother who has never been found to be
unfit to regain custody of her child than it is for a mother from whom a
child has been taken away.
In the case at bar, no amount of interpretation or inference about the
Legislature's intent permits us to override the mother's constitutional
rights. As a practical matter, however, mother has to file a petition to
terminate the guardianship to remove the court order that controls custody.
Because the guardians object to the petition, a hearing will be held by the
probate court. The guardians are free to file their own petition alleging
that the mother is unfit. At the hearing on their petition, the guardians
should have the burden of proof to prove unfitness.
The majority addresses one other issue, and although it is unlikely to
surface in this case in view of the objection of the guardians, it is
important to address the termination of a voluntary guardianship when
there is no objection or counter-petition filed. If that were the case
here, the majority would still not return the child to the mother without
a showing by her that resumption of custody is in the best interests of
the child. In other words, the majority finds that the guardianship is
not freely revocable. This view is irreconcilable with mother's
constitutional rights, for the same reasons as outlined above, because it
treats mother as if she has been adjudged unsuitable when she has not, and
it is inconsistent with our precedent on parental preference.
The parental preference doctrine to which we have adhered in Vermont
for years is based on the notion that "[t]here is a presumption that the
natural affection of a parent for a child will insure the faithful
execution of the trust which he holds as natural guardian." Bioni v.
Haselton, 99 Vt. 453, 458, 134 A. 606, 608 (1926). More recently, in
S.B.L., we recognized "a presumption that it is in the best interests of
the child to grant custody to a natural parent." 150 Vt. at 299, 553 A.2d
at 1062.
This presumption is rebuttable, however, by clear and convincing evidence
that the natural parent is unfit or that extraordinary circumstances
justify denying the natural parent custody. Paquette v. Paquette, 146 Vt.
83, 92, 499 A.2d 23, 30 (1985). Proper application of the parental
preference doctrine also incorporates the unfitness standard necessary to
implement the parent's constitutional right to parent. Therefore, if no
one with standing objects or comes forward to show that the natural parent
is unfit, the presumption is not rebutted, and the parent is entitled to
the return of the child. Under these circumstances, the guardianship is
freely revocable. This is hardly "tearing up" the court order, since
court action is required in any case.
The majority's reluctance to implement the parent's rights may stem
from a fear that an unfit parent who entered into a voluntary guardianship
may seek to revoke that guardianship and the guardian will not object,
thereby endangering the child. See n.4 supra, p.6. I am not suggesting
that the court cannot hold a hearing on a petition to revoke and seek to
understand the setting into which the child will be placed, but the court
is without power to deny the petition unless it finds by clear and
convincing evidence that the parent is unfit.
I am authorized to state that Justice Dooley joins this dissent.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. As there was no transcript of the hearing, we must rely on the only
findings of the court available for review. The one sentence in the 1990
order that mother is "unable to provide adequate and proper care" is not
sufficient to prove she is "unsuitable" according to the Rutherford
factors. The 1990 order contains no discussion of mother's living
circumstances, her employment, her interactions with her son, or anything
else that would support the superior court's assertion that mother is
"unsuitable." Without inquiry into "the character, conditions, habits, and
surroundings" of the parent, there can be no finding that mother is
unsuitable. Rutherford, 139 Vt. at 61, 421 A.2d at 1306 (internal
citation omitted).
FN2. Indeed, all submissions by the parties indicate that no procedural
safeguards were followed. As we stated in Rutherford:
[W]hen a probate proceeding is used as a vehicle to separate
parent and child, it loses its informality. At that point,
fundamental fairness requires that an adequate record be prepared
and that the probate judge make findings, so that on appeal to
this Court, we can determine whether the record supports the
findings and whether the findings support the judgment.
Id. at 63, 421 A.2d at 1307.
FN3. Section 3003 of Title 14 provides: "When, by reason of the
incompetency or unsuitableness of a parent to have custody and education
of a minor child, another person has been appointed guardian of the minor,
the parent may, at any time, file a motion for the removal of the
guardian." (Emphasis added). The statute also states that, "[t]he court
shall schedule a hearing" to determine if the guardianship should be
revoked. 14 V.S.A. § 3003. At the hearing, the court may terminate the
guardianship if it believes that the parent is the "proper person to have
the care and custody of the child." Id. § 3004.
FN4. Because the majority's analysis obfuscates any functional distinction
between guardianships, the majority's holding that the lower court erred
when it held the guardianship was involuntary is meaningless. If there is
no significance to the difference in guardianships, there should be no
error attributed to the trial court.
FN5. Although the majority claims not to overrule S.B.L., it adopts a best
interests standard that is inconsistent with that decision. There was no
determination below that the child was "better off" with someone other
than the parent. Therefore, mother retains her status as a fit parent until
proven otherwise.
FN6. Additionally, it is disingenuous for the majority to claim that mother
does not bear the burden of proof to meet this standard. As a practical
matter, an inquiry into the child's best interest necessitates mother to
present evidence of her own suitability as a parent, even though she was
not deemed unfit. The best interest standard also forces mother to
compare herself to the guardians (i.e. home, income, marital status,
etc.), and convince the court that she is the better parent than the
guardians. I cannot see how an inquiry into the best interest of the child
does not place the burden of proof on mother.
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