In re M.W., Juvenile

In re M.W., Juvenile (2007-083)

2007 VT 90

[Filed 23-Aug-2007]

                                 ENTRY ORDER

                                 2007 VT 90

                      SUPREME COURT DOCKET NO. 2007-083

                              AUGUST TERM, 2007

  In re M.W., Juvenile                 }         APPEALED FROM:
                                       }
                                       }         Chittenden Family Court
                                       }  
                                       }         DOCKET NO. 179-5-05 CnJv

                                                 Trial Judge:  Geoffrey Crawford

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

       ¶  1.  Mother appeals from the family court's order terminating her
  residual parental rights in M.W., and denying her request to create a
  permanent guardianship.  She argues that the family court erred as a matter
  of law in rejecting her request for a permanent guardianship.  We affirm.  

       ¶  2.  M.W. was born in September 1998.  In May 2005, she was taken
  into emergency custody by the Department for Children and Families (DCF)
  due to concerns about mother's drug use and the child's exposure to
  domestic violence.  M.W. was placed with her half-brother's paternal
  grandmother, where she remains.  In July 2005, M.W. was adjudicated as a
  child in need of care or supervision (CHINS) based on mother's admission of
  a serious drug problem.  During the period when M.W. was in DCF custody,
  mother made minimal progress in addressing the goals of the case plan.  She
  continued to use drugs, did not maintain regular contact with M.W., and had
  almost no contact with DCF.  In May 2006, DCF filed a petition to terminate
  mother's parental rights (TPR).  

       ¶  3.  After several days of hearings on the TPR petition, mother
  filed a petition to create a permanent guardianship.  She asserted that
  this disposition was appropriate because it was not reasonably likely that
  the child would be returned to her parents or that she would be adopted
  during the remainder of her minority.  After another day of hearings, the
  court issued its final order terminating mother's residual parental rights
  and denying her request to create a permanent guardianship.  The court made
  the following findings.  Although mother and M.W. shared a close and
  affectionate bond, mother placed her daughter's needs a distant second
  behind the demands of her drug addiction and social life.  Mother had seen
  M.W. only a handful of times since she was taken into DCF custody, and she
  did not visit M.W. at all between November 2005 and December 2006.  Mother
  had minimal contact with DCF, and she had not seriously engaged in any of
  the programs outlined in the disposition plan.  She had no significant
  employment, no home of her own, and was still receiving substance abuse
  treatment approximately twenty-one months after the initial CHINS order. 
  Mother had also recently married a man who was serving time for domestic
  violence.  The court found little likelihood that mother would be able to
  parent M.W. in the foreseeable future.  
   
       ¶  4.  The court found that grandmother provided M.W. with
  much-needed stability and that she and M.W. had a close loving
  relationship.  Grandmother was prepared to adopt M.W.  Grandmother also
  recognized the importance of the relationship between mother and M.W., and
  she testified that she intended to allow and encourage visits between
  mother and M.W. as long as mother was sober during visits and arrived when
  promised.  The court found that grandmother's promises to facilitate
  contact shed considerable light on the understanding and compassion that
  grandmother had for M.W.'s difficult psychological situation. 

       ¶  5.  Based on these and numerous other findings, the court
  concluded that mother had stagnated in her ability to parent, and that it
  was in M.W.'s best interests to be freed for adoption by grandmother.  The
  court explained that while it had no doubt mother loved M.W., her
  addiction, her choice of companions and the lifestyle that accompanied
  addiction rendered mother unable to provide a stable home to and consistent
  care for M.W.  As the court found, M.W. was seriously neglected before
  coming into DCF custody, and after coming into custody, mother was unable
  to play a constructive role in M.W.'s life.  She essentially disappeared. 
  Now, after more than a year of absence and passing contact, mother had
  become engaged again during the months that the TPR petition was pending. 
  The court found that this pattern of behavior did not constitute a
  "constructive role" in M.W.'s life.  The court also rejected mother's
  petition to create a permanent guardianship.  The court explained that, by
  statute, a permanent guardianship was available only upon proof that
  adoption was not "reasonably likely during the remainder of the child's
  minority." 14 V.S.A. § 2664(a)(2).  In this case, the court found,
  grandmother was prepared to adopt M.W.  The court thus entered a final
  judgment order terminating mother's residual parental rights.  This appeal
  followed.  

       ¶  6.  Mother does not contest any of the court's factual findings
  regarding her inability to parent M.W.  Instead, she argues that the court
  erred as a matter of a law in denying her request to create a permanent
  guardianship.  According to mother, the family court's findings demonstrate
  that a permanent guardianship was appropriate in this case, but the court
  felt constrained to reject this option in light of our interpretation of
  the permanent guardianship statute in In re A.S. & K.S., 171 Vt. 369, 764 A.2d 1188  (2000).  Mother contends that creation of a permanent
  guardianship should be allowed even in cases where adoption is reasonably
  likely, and she asks the Court to reconsider its statement to the contrary
  in A.S. 
   
       ¶  7.  Mother's argument is without merit.  As the family court
  recognized, it is precluded by statute from issuing an order for a
  permanent guardianship unless it finds by clear and convincing evidence
  that several specific requirements are satisfied.  14 V.S.A. § 2664.  Among
  other factors, the court must specifically find 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."  Id. § 2664(2).  In A.S., we
  merely recognized and applied the plain language of § 2664.  See 171 Vt. at
  373, 764 A.2d  at 1191 (recognizing that "by its own terms"the permanent
  guardianship statute applies only in "cases in which adoption of the child
  or return to the child's parents is not reasonably likely").  Thus, we held
  that the statute did not apply in a case where the evidence showed that the
  foster family "expressed a willingness and a desire" to adopt the children. 
  Id. 

       ¶  8.  Mother nonetheless argues that we should ignore the plain
  language of the statute and allow the creation of permanent guardianships
  whenever a court finds that they would serve a child's best interests. 
  According to mother, the terms of the permanent guardianship statute are
  inharmonious because they do not allow for this result.  Mother also
  asserts that evidence that a foster parent is "willing" to adopt a child
  should not support a finding that adoption is "reasonably likely."  
        
       ¶  9.  We are unpersuaded by these arguments and by mother's attempt
  to rewrite the statute.  As noted above, the statute specifically provides
  that the family court must find by clear and convincing evidence that
  adoption is not "reasonably likely" during the child's minority before a
  permanent guardianship may be created.  The intent of the Legislature is
  clear from the plain language used, and we therefore must enforce the
  statute as written.  Tarrant v. Dep't of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999).  Indeed, the Legislature reiterated this express intent in
  a policy statement that accompanied the statute.  As the Legislature
  explained, the creation of a permanent guardianship is designed to "provide
  the opportunity for a child, whose circumstances make adoption or return to
  the care of the parents not reasonably possible, to be placed in a stable
  and nurturing home for the duration of the child's minority."  1999, No.
  162 (Adj. Sess.), § 1 (cited in A.S., 171 Vt. at 374, 764 A.2d at 1191). 
  The Legislature considered a permanent guardianship as a "last resort"
  appropriate "only when the options of return to the parents and adoption
  have been fully explored and ruled out based on clear and convincing
  evidence."  Id.  The terms of the statute are not inharmonious, as mother
  argues.  Rather, they reflect a legislative choice that permanent
  guardianships are least likely to serve a child's best interests, and they
  are therefore appropriate only when certain criteria are met.  Mother's
  arguments to the contrary are for the Legislature, not this Court.  See
  A.S., 171 Vt. at 373-74, 764 A.2d  at 1191 ("The wisdom of limiting the
  option of ordering a permanent guardianship to cases only in which adoption
  is not an available alternative is a question to be resolved by the
  Legislature.").

       ¶  10.  We similarly reject mother's narrow interpretation of the
  phrase "reasonably likely."  Where the evidence shows that a foster parent
  is "willing" to adopt a child, it is "reasonably likely" that the child
  will be adopted as those words are commonly understood.  See Comm. to Save
  the Bishop's House, Inc. v. Med. Ctr. Hosp., 137 Vt. 142, 153, 400 A.2d 1015, 1021 (1979) (in interpreting statute, Supreme Court presumes that
  Legislature intended the plain ordinary meaning of the language used). 
  Certainly, under such circumstances, the possibility that the child will be
  adopted cannot yet be ruled out.  In this case, the evidence showed that
  grandmother was prepared to adopt M.W.  Therefore, the permanent
  guardianship statute, by its plain terms, does not apply.  We find no error
  in the family court's decision. 

       Affirmed.


                                       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