In re D.G. and C.G., Juveniles

In re D.G. (2006-073); 180 Vt. 577; 904 A.2d 1206

2006 VT 60

[Filed 24-Aug-2006]

                                 ENTRY ORDER

                                 2006 VT 60

                      SUPREME COURT DOCKET NO. 2006-073

                               JUNE TERM, 2006

  In re D.G. and C.G., Juveniles     }           APPEALED FROM:
                                     }
                                     }
                                     }           Bennington Family Court
                                     }  
                                     }
                                     }           DOCKET NO. F147/148-9-04 Bnjv

                                                 Trial Judge: Nancy Corsones

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Mother appeals the family court's February 1, 2006,
  permanency planning order awarding permanent legal guardianship of two of
  her children to the father's aunt and uncle in West Virginia.  We reverse
  and remand the matter for the family court to consider whether 14 V.S.A. §
  2664(a)(2) has been satisfied.

       ¶  2.  The two children that are the subject of this appeal are
  D.G., born in December 1996, and C.G., born in December 1998.  The children
  have been in the custody of the Department for Children and Families (DCF)
  since September 2004 when DCF filed a petition alleging that the children
  were in need of care or supervision (CHINS) because of mother's neglect. 
  At the initial disposition hearing held in the spring of 2005, the family
  court continued custody with DCF and adopted a case plan that recommended
  sending the children to their father's aunt and uncle in West Virginia to
  explore a possible placement with the couple as permanent legal guardians. 
  The court determined at the disposition hearing that neither mother nor the
  children's father would be capable of resuming parental responsibilities
  within the foreseeable future.  The children were placed with the father's
  aunt and uncle in West Virginia in July 2005.  Following a permanency
  hearing in the fall of 2005, the family court awarded legal guardianship to
  the aunt and uncle, thereby transferring legal custody from DCF to the
  couple.

       ¶  3.  On appeal, mother first contends that the court
  "bootstrapped" findings from the merits hearing, which required proof by
  only a preponderance of the evidence, to satisfy the
  clear-and-convincing-evidence standard required to support an order
  establishing a permanent guardianship.  See 14 V.S.A. § 2664(a) (court must
  find by clear and convincing evidence certain enumerated facts before
  issuing order for permanent guardianship).  We reject this argument for
  several reasons.  First, at the initial disposition hearing, the court
  stated that it was firmly convinced under any standard that the State had
  met its burden of demonstrating that its plan was in the children's best
  interests.  Second, at the permanency hearing, mother's attorney objected
  to relitigating the merits of the case and explicitly asked the court to
  take judicial notice of its merits and disposition findings.  Third, and
  most importantly, the family court (1) acknowledged in the decision being
  appealed that the clear-and-convincing-evidence standard was applicable,
  (2) defined in detail the State's burden in meeting that standard, and (3)
  expressly found that the evidence examined in its findings met that
  standard.  We find no error.
   
       ¶  4.  Mother also argues that the family court erred by failing to
  find a significant change in material circumstances before transferring
  custody of the children from DCF to the aunt and uncle.  We need not
  address the legal question posed by mother because the family court's
  findings amply demonstrated changed circumstances due to stagnation in
  mother's parenting ability.  As the court found, since the disposition
  order and the children's move to West Virginia, mother had made little
  effort to communicate with the children, had been jailed for criminal
  offenses, had failed to participate in needed mental health counseling, and
  was living with her father in a community that does not allow children to
  reside.  The court also expressed doubt that mother had ended a recent
  romantic relationship with a man who had a history of sexual offenses
  against children.  In short, changed circumstances were manifest from the
  court's findings.

       ¶  5.  Next, mother argues that the court's permanency order must be
  reversed because the court failed to find that adoption of the children was
  not reasonably likely during the remainder of their minority, as required
  by 14 V.S.A. § 2664(a)(2).  We agree.  Section 2664(a)(2) states that
  "[b]efore issuing an order for permanent guardianship, the court shall find
  by clear and convincing evidence" that "[n]either returning the child to
  the parents nor adoption of the child is reasonably likely during the
  remainder of the child's minority."  See In re A.S., 171 Vt. 369, 373, 764 A.2d 1188, 1191 (2000) (discussing § 2664(a)(2)).  Here, the family court
  made no finding regarding this subsection, even though § 2664(a) explicitly
  makes such a finding, along with others, a prerequisite to creation of a
  legal guardianship.  Accordingly, the matter must be remanded for the court
  to address § 2664(a)(2).  If necessary, on remand the court may take
  additional evidence concerning that criterion.

       ¶  6.  Finally, mother argues in a supplemental brief that Vermont
  law does not authorize awarding permanent legal guardianships to
  nonresidents.  According to mother, the absence of an express provision for
  nonresident guardianship, coupled with an express requirement that a case
  be transferred to "the appropriate probate court in the district in which
  the permanent guardian resides,"  § 2664(c), compels the conclusion that
  only Vermont residents may qualify as permanent guardians.  It does not
  appear that § 2664(c) demonstrates a legislative intent to exclude
  out-of-state residents from being permanent guardians.  Indeed, the statute
  is silent as to whether out-of-state guardians are permitted-it neither
  specifically allows nor precludes such a possibility.  In any event, we
  need not consider this argument because mother failed to raise it either
  below or on appeal in her initial brief.  See In re D.C. & D.C., 157 Vt.
  659, 660, 613 A.2d 191, 191 (1991) (mem.) (issues not raised at earliest
  opportunity with specificity and clarity are not preserved for appeal). 
  Mother may raise the issue anew on remand, however.

       Reversed and remanded for proceedings consistent with this opinion.  


                                       BY THE COURT:


                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice 

                                       _________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       Brian L. Burgess, Associate Justice