In re M.T., Juvenile

In re M.T., Juvenile (2006-193); 180 Vt. 643; 912 A.2d 456,

2006 VT 114

[Filed 07-Nov-2006]

                                 ENTRY ORDER

                                 2006 VT 114

                      SUPREME COURT DOCKET NO. 2006-193

                             OCTOBER TERM, 2006


  In re M.T., Juvenile                }          APPEALED FROM:
                                      }
                                      }
                                      }          Caledonia Family Court
                                      }
                                      }
                                      }          DOCKET NO. 49-5-05 CaJv

                                                 Trial Judge: M. Kathleen Manley

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

       ¶  1.  Mother appeals the family court's order terminating her
  parental rights with respect to her son, M.T.  She argues that the court
  lacked personal jurisdiction over her because she was not served with a
  summons to appear at the termination hearing.  We reverse the court's order
  and remand the matter because the court failed to directly notify mother,
  in addition to her attorney, of the scheduled termination hearing.

       ¶  2.  M.T. was born in June 1992 and placed in the custody of the
  Department for Children and Families (DCF) in May 2005 because mother had
  left him with an older brother unable to care for him.  In June 2005,
  mother appeared at a merits hearing and stipulated that M.T. was a child in
  need of care or supervision (CHINS).  In July 2005, at the conclusion of a
  hearing attended by mother's attorney, but not mother, the family court
  entered a disposition order placing M.T. in the custody of DCF.  Mother did
  not request a hearing to contest the disposition order, nor did she appear
  at a later permanency review hearing.  At a December 2005 status conference
  following DCF's filing of a petition to terminate mother's residual
  parental rights and responsibilities, mother's attorney advised the court
  "to just proceed with a hearing on the petition."  The attorney stated that
  she would notify mother, but she doubted that mother would show up.  She
  expressed her belief that "the State [would] present the quantum of
  evidence."  The court stated that the "better course" would be to serve
  mother personally once a termination hearing was scheduled.  Mother's
  attorney responded that she would send mother papers giving her an
  opportunity to voluntarily relinquish her parental rights and would
  personally serve mother regarding the termination hearing if mother did not
  agree to sign the papers.
   
       ¶  3.  One month later, at another status conference, mother's
  attorney indicated that she would be filing a motion to withdraw based on
  hostile communications from mother.  Apparently, in response to receiving
  voluntary relinquishment papers from her attorney, mother left a
  belligerent message on the attorney's answering machine.  The attorney
  reported to the court that mother had made it "clear that she will not
  under any circumstances voluntarily relinquish her parental rights."  The
  court scheduled a later hearing to consider the attorney's motion to
  withdraw and, in the meantime, scheduled a two-hour termination hearing for
  March 16, 2006, after the State indicated that one hour would be
  sufficient.  At a later hearing, the court denied the attorney's motion to
  withdraw, and the attorney informed the court that she sent mother notice
  of the hearing at the same New Hampshire address where she had sent other
  prior notices to mother.  The court stated that it was troubled by mother
  not attending the hearing to express her apparent dissatisfaction with the
  attorney, but that, given what was at stake, it would be better to have her
  represented by competent counsel.

       ¶  4.  At the termination hearing, DCF's attorney submitted into
  evidence two letters that the Department had sent to mother notifying her
  of the date and location of the termination hearing and requesting that she
  attend.  The letters had been sent certified, return requested, and had
  been signed by mother.  Two witnesses for the State testified at the
  hearing-a social worker and M.T.'s foster father.  Following the hearing,
  the family court granted DCF's termination petition, finding that mother
  had abandoned M.T., had not complied with the disposition case plan, and
  would be unable to resume parental duties within a reasonable period of
  time.  Regarding notice to mother, the court stated that mother had
  apparently been receiving notices of the various hearings from her
  attorney, and further that DCF had sent her two certified letters, return
  receipt, notifying her of the termination hearing.

       ¶  5.  On appeal, mother argues that the family court did not
  acquire personal jurisdiction over her because service of the termination
  petition was defective in that the court failed to direct the issuance of a
  summons for her appearance at the hearing, as required by statute. 
  According to mother, a termination proceeding is separate and distinct from
  a CHINS proceeding, and thus the notice requirements of 33 V.S.A. §§
  5519-5520-including that the court direct issuance of a summons-apply.  To
  support this argument, mother relies primarily upon two sources:     In re
  B.C. 175 Vt. 1, 5, 726 A.2d 45, 49 (1999) and 33 V.S.A. § 5532(b).
        
       ¶  6.  In B.C., a case construing the Uniform Child Custody
  Jurisdiction Act (UCCJA), we recognized that unless termination "is sought
  at the initial disposition hearing, a TPR petition commences a new
  proceeding to modify the previous disposition order based on changed
  circumstances."  169 Vt. at 5, 726 A.2d  at 49.  We made it clear in that
  case, however, that a petition to modify a previous disposition order
  commences a new proceeding only " '[f]or purposes of the UCCJA.' "  Id.
  (quoting Matthews v. Riley, 162 Vt. 401, 406 n.4, 649 A.2d 231, 236 n.4
  (1994)).  We concluded that, for purposes of determining which state has
  jurisdiction over a custody dispute, it makes sense in most instances (FN1)
  to consider the date of a motion to modify a previous custody or
  disposition order as the date of the commencement of the proceeding.  See
  id. at 5-6, 726 A.2d  at 49.  Our decision in B.C., however, does not stand
  for the proposition that a termination petition commences a proceeding that
  is completely distinct from the underlying CHINS proceeding, thereby
  requiring original process, including a summons.  To the contrary, when a
  termination petition seeks modification of a previous disposition order in
  a pending CHINS case, the resulting termination proceeding is a
  continuation of the CHINS proceeding and not an independent proceeding
  requiring original process.   

       ¶  7.  Mother argues, however, that a summons is required to
  commence a termination proceeding because 33 V.S.A. § 5532(b) provides that
  any order made in response to a petition to modify a previous order "shall
  be made after notice and hearing as in the case of a [CHINS] petition filed
  under section 5516 of this title."  (Emphasis added).  When a petition is
  filed under 33 V.S.A. § 5516, thereby commencing a CHINS proceeding, the
  family court is required to set a hearing no later than fifteen days
  following the filing of the petition and to "direct the issuance of a
  summons" to the parents or guardian, among others, "requiring them to
  appear before the court at the time fixed to answer the allegations of the
  petition."  Id. § 5519(a).  The statute expressly requires the summons to
  state that each party is entitled to counsel, id. § 5519(c), and further
  compels the court to "endorse upon the summons an order directing the
  parents, guardian, custodian, relative or person referred to [in § 5519(a)]
  to appear personally at the hearing."  Id. § 5579(b).  Any person who fails
  to appear as directed by a summons "may" be found in contempt, and a
  warrant for that person's appearance "may" issue.  33 V.S.A. § 5521(a)-(c). 
  A hearing on a CHINS petition may not take place without the presence of,
  among others, "one or both of the parents, guardian or custodian of the
  child."  Id. § 5521(d).

       ¶  8.  In mother's view, the clause in § 5532(b) requiring that
  orders in response to modification petitions "be made after notice and
  hearing as in the case of a [CHINS] petition" compels the court to follow
  every nuance of the original service of process procedure set forth in §§
  5516-5521 to commence a CHINS proceeding.  Mother reads too much into the
  clause contained in § 5532(b).  We do not read the quoted clause to mean
  that anytime a party moves to modify a previous order, the court must go
  forward as if an entirely new proceeding was being commenced.  This does
  not make sense, as demonstrated by the provisions themselves.  For example,
  § 5519(b) requires the court to "endorse upon the summons an order
  directing the parents, guardian, custodian"-in other words, the legal
  custodian-"to appear personally at the hearing."  In the case of a
  termination petition, that would most often be DCF, not the parents. 
  Further, § 5519(c) requires the summons to advise the parties that they are
  entitled to counsel, which generally would be unnecessary for a termination
  hearing because the parties have already obtained or been appointed counsel
  in the pending CHINS proceeding.
   
       ¶  9.  The bottom line is that a termination petition does not
  commence an entirely new proceeding because there is a CHINS proceeding
  pending, and therefore the original process demanding the appearance of the
  parents is not necessary.  The "dominant concern" of the Legislature in
  promulgating the provisions concerning the commencement of a juvenile
  proceeding is "to place the children quickly in the safest and most
  suitable environment" while at the same time protecting all of the
  interests involved and obtaining a speedy resolution of the dispute.  In re
  R.S., 143 Vt. 565, 569, 469 A.2d 751, 754 (1983).  When such a proceeding
  is commenced, it makes sense to require the issuance of a summons to
  apprise the parties of the nature of the action being commenced against
  them, to require their presence, and to give them an opportunity to obtain
  counsel and respond.  See Stewart-Brownstein v. Casey, 728 A.2d 1130, 1132
  (Conn. App. Ct. 1999) (stating that, in ordinary usage of term, summons is
  original process upon which action is commenced and named defendant is
  brought within jurisdiction of court).  In this manner, the court system
  can quickly and efficiently protect the juveniles involved.  On the other
  hand, once a CHINS proceeding has commenced, and the parties have been made
  aware of the proceeding and have either obtained, or had an opportunity to
  obtain, counsel, it is no longer necessary to issue original process,
  including a summons, requiring their presence and advising them to obtain
  counsel.

       ¶  10.  The question remains, however, if not a summons, what kind of
  notice does the statute require?  Although we are not persuaded that a
  summons is necessary, we conclude that the statute requires, at a minimum,
  that the court provide direct notice to the parents of a scheduled
  termination hearing.  Section 5532(b) requires "notice and hearing" as in
  the case of a CHINS petition, which, in turn, requires direct notice to the
  parents.  We recognize that, contrary to the situation when the CHINS
  petition was filed, mother had assigned counsel at the time DCF filed its
  termination petition.  Further, we have no doubt, after reviewing the
  record, that the court sent mother's attorney formal notice of the
  termination hearing, and that mother's attorney informed mother of the
  hearing.  Finally, we acknowledge that our normal rules of service require
  only service upon the attorney of a party represented by counsel.  See
  V.R.C.P. 5(b) ("Whenever under these rules service is required or permitted
  to be made upon a party represented by an attorney the service shall be
  made upon the attorney unless service upon the party is ordered by the
  court."); see also V.R.F.R. 2(a)(1) (stating that rules of civil procedure
  apply to CHINS proceedings, unless otherwise noted); cf. Agency of Natural
  Res. v. Towns, 168 Vt. 449, 453, 724 A.2d 1022, 1024 (1998) (holding that
  because notice communicated to attorney is presumed to be communicated to
  attorney's client, notice to attorney sufficient to trigger statute of
  limitations is imputed to client and will bar claim regardless of whether
  information was actually communicated to client).

       ¶  11.  Nevertheless, substantial compliance with § 5532(b) and §§
  5519-5520 requires, at minimum, direct notice from the court to the
  parents.  See V.R.F.P. 2(a)(3) ("[V.R.C.P. ] 4 shall apply subject to 33
  V.S.A. §§ 5519, 5520).  Moreover, the rationale underlying V.R.C.P. 5(b)
  does not address the concerns that are present with respect to a
  termination proceeding.  The theory underlying Rule 5(b) is that service to
  the attorney "will expedite preparation of the case for prompt adjudication
  on the merits."  4B C. Wright & A. Miller, Federal Practice and Procedure §
  1145, at 433-43 (3d ed. 2002).  That may be true, but our concern, and
  apparently the concern of the Legislature, is that parents faced with the
  ominous prospect of permanently losing their children are entitled to
  direct notice from the court of a pending petition and scheduled hearing
  concerning the termination of their parental rights.  The Legislature has
  vested with the family court the "awesome power" to sever familial
  relationships, see In re J.M., 131 Vt. 604, 607, 313 A.2d 30, 31 (1973),
  but has also required the court to provide parents direct notice of a
  hearing in which it may exercise that power.
        
       ¶  12.  The case before us amply demonstrates the wisdom of such a
  policy.  The principal proof of notice of the termination hearing was two
  letters sent by DCF, the party aligned against mother in this case,
  requesting her presence at the hearing.  The court also sent notice of the
  hearing to mother's attorney, who presumably informed mother.  The
  attorney, however, had filed a motion to withdraw because of mother's
  hostile reaction to receiving papers from the attorney regarding voluntary
  relinquishment of parental rights.  After the family court denied the
  motion, the attorney advised the court to proceed with the termination
  hearing, while at the same time acknowledging that mother would most likely
  not appear for it.  We cannot presume that mother recognized the full
  import of the proceeding without receiving direct notice of the termination
  hearing from the court empowered to take her child from her.  Nor can we
  presume that notice from the opposing party or the attorney with whom she
  was feuding sufficiently conveyed the gravity of the situation.  We
  conclude that § 5532(b) and §§ 5519-5520 require the family court to
  provide direct notice of a pending termination petition and hearing to the
  parents of children who are the subject of the petition, in addition the
  parents' attorneys.  Because that was not done in this instance, we must
  reverse the termination order and remand the matter for further
  proceedings.

       Reversed and remanded.


                                       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


------------------------------------------------------------------------------
                                  Footnotes


FN1.  As noted in In re B.C., 169 Vt. at 6 n.*, 726 A.2d  at 49 n.*, we
  recognized in Columb v. Columb, 161 Vt. 103, 112 n.4, 633 A.2d 689, 694 n.4
  (1993) "that the date of the filing of a motion to modify would not be
  considered the date of the commencement of the proceeding if another state
  had continuing jurisdiction under the [Parental Kidnapping and Prevention
  Act]."