In re J.C.

Annotate this Case
In re J.C.  (98-275); 169 Vt. 139; 730 A.2d 588

[Filed 12-Mar-1999]

       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. 98-275

In re J.C. and N.C. (Adoption)	              Supreme Court

                                              On Appeal from
     		                              Hartford Probate Court

November Term, 1998

Ronald H. Bean, J.

       Maryann Zavez, Alexander W. Banks, Linda Joyce, Russell E. Owens and
  James Tucker, Legal Interns, South Royalton Legal Clinic, South Royalton,
  for Appellant.

       Peter M. Nowlan of Nowlan & Meyer, Randolph, for Appellees.

       Mark E. Furlan, Randolph, for Children.

PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

       AMESTOY, C.J.   Perley E. Smith, the guardian of minors N.C. and J.C.,
  appeals from  an order of the probate court denying his petition to
  terminate the parental rights of respondents,  the minors' natural parents. 
  Smith contends the court erred as a matter of law in: (1) concluding  that
  the existence of Smith's guardianship constituted good cause for
  respondents' non-support of  the minors; and (2) failing to consider the
  requisite statutory criteria in ruling that termination was  not in the
  minors' best interests.  We conclude that the appeal is not within the
  jurisdiction of this  Court because it does not present a pure question of
  law capable of resolution without reliance  upon the factual record. 
  Therefore, we transfer the appeal to the superior court.

       Smith is the childrens' grandfather, the father of their natural
  mother, M.C.  In January  1993, Smith and his wife were appointed guardians
  of the minors with the consent of the mother  and the childrens' natural
  father, D.C.  At that time, the children were less than three and five 
  years old.  Respondents moved unsuccessfully to terminate the guardianships
  in November 1993 


  and January 1995.  The Smiths filed a petition to adopt in December 1994,
  and subsequently filed  a petition to terminate parental rights in May
  1997.  Smith's wife died prior to the hearing on the  motion to terminate,
  and Smith continued to serve as guardian.

       Under Vermont's Adopton Act, 15A V.S.A. §§ 3-101 - 3-802 (Cum. Supp.
  1998),  grounds for the termination of a parental relationship with a minor
  over the age of six months  exist where the court finds, upon clear and
  convincing evidence, that the respondent parent "did  not exercise parental
  responsibility for a period of at least six months immediately preceding
  the  filing of the petition," id. § 3-504(a)(2), and that termination is in
  the best interests of the minor.  See id. § 3-504(a).  In determining
  whether the respondent parent has exercised parental  responsibility, the
  court must consider "all relevant factors," including the parent's failure

     (A) make reasonable and consistent payments, in accordance with 
   his or her financial means, for the support of the minor, although 
   legally obligated to do so;

     (B) regularly communicate or visit with the minor; or 
     (C) during any time the minor was not in the physical custody of 
   the other parent, to manifest an ability and willingness to assume 
   legal and physical custody of the minor.

  Id. § 3-504(a)(2).

       The Act provides further that if the respondent establishes by a
  preponderance of the  evidence "good cause" for not exercising parental
  responsibility, the court may not terminate  parental rights except upon a
  finding by clear and convincing evidence that: (1) certain additional 
  grounds exist, e.g. that given the opportunity the parent would not have
  the ability and disposition  to provide the child with love, affection and
  guidance, adequate food and clothing, or a safe  environment; and (2) that
  termination is in the best interests of the minor.  See id. § 3-504(b). 
  The Act additionally provides that "the court shall consider the best
  interests of the child in  accordance with" four specific criteria,
  including: (1) the likelihood that respondent will be able  to resume
  parental responsibilities within a reasonable period of time; (2) the
  child's adjustment  to his or her home, school and community; (3) the
  interaction of the child with 


  parents, siblings, and others who may affect the child's best interests;
  and (4) whether the parent  has played, and continues to play, a
  constructive role in the child's welfare.  See id. § 3-504(c).

       Following an evidentiary hearing on the termination petition, the
  probate court found that  although Smith was in failing health, the
  children were adequately provided for, partly as a result  of the
  assistance Smith received from two older grandchildren who also lived with
  him.  The court  further found that respondents had no parenting skills,
  had not completed any parenting classes,  and had maintained only sporadic
  contact with the children.  Thus, the court concluded that Smith  had shown
  by clear and convincing evidence that respondents had not supported the
  minors, and  had not manifested an ability or willingness to assume custody
  of the children for the six months  preceding the filing of the petition.   

       The court went on to conclude, however, that respondents had
  established good cause for  their failure to exercise parental
  responsibility by virtue of the existence of the guardianship.  As  the
  court explained: 

     The guardianship does not require the respondents to support the 
     boys, and it does not allow them to take back custody.  Thus, the 
     shifting burden of proof imposed by 15A VSA 3-504 ends with the 
     respondents showing that the guardianship, still in existence, is their 
     reason for not supporting their sons, or pressing to regain legal 

       The court then addressed the best-interests component, observing that
  a  termination of parental rights would not "change much of anything" 
  other than the nature of the parties' formal relationship with the 
  children.  The children would continue to reside with Smith  regardless of
  the outcome of the termination proceeding; hence, the  court concluded that
  the petition was "superfluous" and denied it.  Smith thereupon appealed to
  this Court pursuant to 12 V.S.A. §  2551, which provides for Supreme Court
  jurisdiction over  "questions of law" arising out of the probate court. 
  The probate  court certified the following question to be determined by
  this  Court: 	
     Is the shifting burden of proof set out in 15A V.S.A. § 3-504 
     satisfied by a respondent showing that he has good cause for not 
     complying with the subdivision (a)(2) requirement of exercising 
     parental responsibility by reason of the fact that the children are 



     under guardianship and not under his control, in the absence of any 
     showing that the children's best interests would be served by  
     terminating parental rights? 

  See V.R.A.P. 13(c) (in appeals from probate court to Supreme Court, record
  shall consist of  certified copy of proceedings, setting forth questions of
  law to be decided by Court).


       In In re Estate of Johnson, 158 Vt. 557, 559, 613 A.2d 703, 704
  (1992), this Court held  that in direct appeals from probate court, we
  "review only `pure' questions of law, the resolution  of which do not
  depend upon factual distinctions and do not require review of the record."  
  We  reached this conclusion because the superior court has "appellate
  jurisdiction of matters originally  within the jurisdiction of the probate
  court," 12 V.S.A. § 2553, and sits as a higher court of  probate,
  considering the case anew as if no prior proceeding had occurred in the
  probate court,  see Whitton v. Scott, 120 Vt. 452, 457-58, 144 A.2d 706,
  709 (1958).  We stressed that the  Legislature did not intend "to create a
  forum choice for litigants" and that we must limit the role  of this Court
  in probate appeals to foster "the orderly, consistent administration of
  justice and  discourage forum shopping."   Johnson, 158 Vt. at 560, 613 A.2d  at 705.  

       Here, the probate court's ruling, and the certified question to this
  Court, raise two issues:  (1) whether respondents demonstrated good cause
  for not exercising parental responsiblity "by  reason of the fact that the
  children are under guardianship"; and (2) whether termination was in  the
  best interests of the children.  

       As to the first issue, the statute requires the probate court to
  consider "all relevant factors"  in determining whether respondents have
  demonstrated good cause for not exercising parental  responsibilities.  15A
  V.S.A. § 3-504(a)(2).  Accordingly, any appeal from that determination 
  necessarily requires a review of the factual record, and is therefore
  beyond this Court's  jurisdiction.  See Johnson, 158 Vt. at 559-60, 613 A.2d  at 704.  Smith has attempted,  nevertheless, to frame the issue on
  appeal as presenting a pure question of law, noting that the


  probate court's written decision, and its certified question, suggest that
  the court did not consider  the totality of the factual circumstances, but
  rather ruled that good cause had been established as  a matter of law
  solely because of the existence of the guardianship.  

       Smith's concern is understandable.  Absent a specific provision to the
  contrary, nothing  in the certificate of appointment of a guardian
  abrogates a natural parent's fundamental duty to  support his or her child. 
  See In re J.B., 157 Vt. 668, 669, 603 A.2d 368, 369 (1991) (mem.)  (parents
  have duty to provide support, when they are able, for minor children). 
  Furthermore,  nothing in the language, or the policy, of the Adoption Act
  supports the probate court's conclusion  that the mere existence of a
  guardianship constitutes good cause for a parent's failure to provide 
  support, or to manifest an ability or willingness to assume custody of the
  children.  The "guiding  principle" of the Uniform Adoption Act, the model
  for Vermont's Adoption Act, is "to promote  the welfare of children, and
  particularly, to facilitate the placement of minor children who cannot  be
  raised by their original parents with adoptive parents who can offer them
  stable and loving  homes."  Unif. Adoption Act, Prefatory Note, 9 U.L.A. 2
  (Supp. 1998).  A finding of good cause  based solely upon the existence of
  a guardianship would discourage the natural parents from  resuming their
  parental responsibilities, impede the efforts of the guardian or other
  prospective  parent from adopting, and ultimately undermine the purpose of
  the Act in finding the child a stable  and loving home.

       This Court's consideration of whether the probate court erred as Smith
  contends would  invariably require a careful review of the record as a
  whole and the particular facts and  circumstances of the case.  As we held
  in Johnson, 158 Vt. at 559-60, 613 A.2d  at 704, this is  precisely the sort
  of determination more properly left to the superior court.  

       The second issue on appeal is also clearly beyond the scope of this
  Court's appellate  review.  Smith contends the probate court failed to
  address the requisite statutory criteria in  determining whether a
  termination of parental rights was in the best interests of the children.  


  As noted, the Adoption Act provides that the probate court must consider
  the best interests of the  child in accordance with four specific criteria. 
  See 15A V.S.A. § 3-504(c).  These factors are  identical to those
  applicable in termination proceedings brought by the Department of Social
  and  Rehabilitiation Services under 33 V.S.A. § 5540. 

       In reviewing the adequacy of findings under § 5540, we have held that
  while a court need  not couch its findings in the precise language of §
  5540, see In re G.V. and R.P, 136 Vt. 499,  502, 394 A.2d 1126, 1128
  (1978), the record must, nevertheless, demonstrate that the best  interests
  of the children were considered "in accordance" with the statutory
  criteria.  See In re  M.B., 162 Vt. 229, 235, 647 A.2d 1001, 1004 (1994);
  see also In re C.L. and H.L., 151 Vt.  480, 482-83, 563 A.2d 241, 243
  (1989) (Court will uphold judgment in absence of explicit  findings on
  enumerated statutory factors when record shows that family court considered
  requisite  factors in terminating parental rights).  

       Obviously, therefore, we cannot review the adequacy of the probate
  court's findings  concerning the children's best interests without
  considering the evidentiary record as a whole.  As we explained in Johnson,
  this is precisely the type of fact-specific issue reserved for the  probate
  court in the first instance, and for the superior court on de novo review. 
  See Johnson,  158 Vt. at 559-60, 613 A.2d  at 704.  Preserving the superior
  court's jurisdiction over the  particular procedural and substantive facts
  of the case "avoids inconsistency and minimizes  concurrent jurisdiction." 
  Id. at 560, 613 A.2d  at 705.  Furthermore, our rules relax the obligation 
  of the probate courts to engage in extensive fact-finding precisely to
  facilitate the expeditious  movement of cases from the probate to the
  superior court, where it can be concluded with limited  review thereafter. 
  See V.R.P.P. 52(a) (probate court's findings and conclusions sufficient if 
  stated orally at close of evidence).  Failure to adhere to this Court's
  jurisdictional requirements  would ultimately delay this process, and
  impede resolution of the underlying disputes. 

       Although in this case the time for filing an appeal to the superior
  court has expired, see


  V.R C.P. 72(a), V.R.A.P. 4, we conclude that to avoid an unduly harsh
  result the cause should  be transferred to the superior court for further
  consideration.  See 4 V.S.A. § 2(b) (Court has  "jurisdiction to issue all 
  .  .  .  orders that may be necessary to the furtherance of justice"); In 
  re Estate of Piche, 166 Vt. 479, 484, 697 A.2d 674, 677 (1997)
  (transferring cause to superior  court for de novo trial); Johnson, 158 Vt.
  at 560, 613 A.2d  at 705 (transferring cause to superior  court
  notwithstanding expiration of time for filing appeal).  Accordingly,
  pursuant to our  supervisory authority, we order the cause transferred to
  the superior court for further review.

       Cause transferred to superior court for further proceedings consistent
  with the views  expressed herein.     

                               FOR THE COURT:

                               Chief Justice