In re A.S.

In re A.S. (2000-088); 171 Vt. 599; 762 A.2d 830 

[Filed 12-Oct-2000]
[Motion for Reargument Denied 2-Nov-2000]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-088

                            SEPTEMBER TERM, 2000


In re A.S., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
    	                               }	Addison Family Court
                                       }	
                                       }
                                       }	DOCKET NO.101-12-97 Anjv

                                                Trial Judge: Stephen B. Martin


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


       After seven-year-old A.S. was determined to be a child in need of care
  and supervision, and  her parents voluntarily relinquished their parental
  rights, the child's paternal grandmother sought  custody and guardianship
  or, in the alternative, visitation rights under 33 V.S.A. §5528(a)(3)(B).  
  Family court granted visitation to grandmother but denied guardianship, and
  transferred custody to  the Commissioner of Social and Rehabilitation
  Services without limitation as to adoption.  On  appeal, grandmother
  contends that the family court erroneously assumed that in the event of
  adoption  of A.S. by her foster parents, the probate court was authorized
  to ensure continued visitation.   Grandmother asserts the error requires
  reversal of the court's decision, and a remand to determine  whether an
  alternative disposition order is in the best interests of the child.  We
  affirm.

       A.S. was born in January 1993.  In August of that year, A.S.'s father
  went to jail.  In October,  both parents relinquished A.S. to her paternal
  grandmother through a voluntary probate guardianship.  A.S.'s mother
  subsequently left the state.  In January 1994, family court granted
  grandmother  placement and primary care of A.S.  Grandmother returned A.S.
  to live with her father upon his  release from jail in May 1994.

       Over the next four years, A.S.'s father was in and out of jail on
  various offenses, including:  sexual assault on a minor, aggravated
  assault, burglary, reckless endangerment, disorderly conduct,  hate crimes
  and a number of probationary violations. Whenever father was released from
  jail,  grandmother returned A.S. to his care.  According to the family
  court:

    Despite being aware of her son's abusive and neglectful life
    style, and  despite having a Probate Guardianship Order and a
    Family Court Order  giving her placement and primary care of A.S.
    since 1993 [grandmother]  repeatedly allowed her son to have
    physical custody of A.S.

 

  Nevertheless, during the periods of father's incarceration, grandmother
  provided "a consistent home  environment and sought medical and educational
  services for A.S."

       In December 1997, family court placed A.S. in SRS custody after
  authorities discovered that  she and her father were living in a van.  A.S.
  was found to be in need of primary care, and  developmentally delayed with
  a speech and language deficit of 18 months.  SRS immediately placed  A.S.
  in the foster home of Adam and Lisa Alger, who now "consider A.S. one of
  their family," and  plan to "adopt A.S. if custody is given to SRS and she
  is freed for adoption."

       At the initial disposition hearing, SRS recommended that custody and
  guardianship be  transferred to the agency without limitation as to
  adoption.  Grandmother opposed SRS's  recommendation, and sought custody
  pursuant to 33 V.S.A. § 5528(a)(3)(B) which allows the  juvenile court to
  place custody of a child found to be in need of care and supervision with
  "any other  individual found . . . to be qualified to receive and care for
  the child."  Grandmother sought, in the  alternative, visitation. 

       The court determined that grandmother was not qualified to assume
  custody of A.S.  It stated  that "while [grandmother] loves her
  granddaughter and wants to do what is best for her, she is not  qualified
  to receive and care for A.S., whose development has already been placed at
  risk."  The  court further noted that grandmother's "inability to protect
  A.S. in her early years from the abuse and  neglect of her father . . .
  raises serious concerns whether [she] could protect A.S. when her son is 
  released from jail." 

       The court granted custody and guardianship to SRS, indicating that
  adoption by the Algers was  clearly and convincingly in the child's best
  interests.  The court stated:

    It is in A.S.'s best interest that she continue with the social,
    emotional and  developmental growth she has shown with the Algers. 
    After a chaotic,  abusive and neglectful beginning to her life,
    A.S. deserves the permanence  and stability she has found during
    the last 21 months in the Alger home.

       The court also recognized A.S.'s relationship with her grandmother:
  "[i]t is clear A.S. enjoys  seeing her grandmother and is enthusiastic
  during their meetings. . . . A.S. exhibits interest and  curiosity about
  her family and wants to have this family contact."  While the court found
  that A.S.  "flourished" in the Algers' care, it also noted that the Algers
  had been averse to maintaining contact  with grandmother, and reluctant to
  provide their phone number or mailing address.  The court  observed that if
  the Algers and grandmother were unable to settle their differences, "it
  appears that  the Probate Court may consider the issue of grandparent
  visitation in this case under 15A §4-112(c) .  . . " (emphasis added).

       On appeal, grandmother asserts that the family court erred in
  concluding that court-ordered  visitation could survive adoption pursuant
  to 15A V.S.A. § 4-112(c).  Both parties readily concede 

 

  that Article 4 of the Adoption Act pertains exclusively to stepparent
  adoptions, and is not applicable  in this instance. Grandmother contends
  that the error compels remand to the family court to consider  whether it
  should impose a disposition other than adoption in order to permit
  continuing judicial  oversight regarding visitation.  SRS contends that the
  error was harmless, and that the court's  decision to release the child for
  adoption was not contingent upon its erroneous application of the  statute
  to ensure grandparent visitation.  We agree with SRS that the court's
  reference to 15 V.S.A.  §4-112(c) was not a precondition of its disposition
  order.

       Although the family court recognized the importance of A.S.'s
  relationship with her  grandmother, there is nothing in the court's order
  which enables us to read that freeing the child for  adoption by the Algers
  was contingent upon ensuring grandmother's visitation rights.  On the 
  contrary, the court explicitly indicated that grandmother's visitation
  rights would terminate upon  adoption: 

    This Court supports and encourages the adoption of A.S. by Mr. and
    Mrs.  Alger knowing full well that the visitation rights granted
    by this Order will  expire when A.S. is adopted through the
    Probate Court.

  (emphasis added).  Furthermore, in its order, the court granted grandmother
  "visitation rights to AS .  . . until AS is adopted" pursuant to 15 V.S.A.
  §1011. (emphasis added)  Grandparent visitation under  Title 15 expires
  "when a child subject to an order under this chapter is later adopted." 15
  V.S.A.  §1016.

       This disposition is consistent with the Adoption Act in which three
  separate provisions specify  that final adoption decrees render outstanding
  orders and visitation agreements unenforceable.  15A  V.S.A. § 1-109 ("When
  a decree of adoption becomes final, except as provided in Article 4 of this 
  title, any order or agreement for visitation or communication with the
  minor shall be  unenforceable."); 15A V.S.A. § 3-703(c) ("the decree of
  adoption terminates any existing order for  visitation or communication");
  15A V.S.A. § 3-705(c) ("[e]xcept for a decree of adoption of a minor  by a
  stepparent which is issued pursuant to Article 4 of this title, a decree of
  adoption of a minor  shall contain a statement that any order or agreement
  for visitation or communication with the minor  that was in effect before
  the decree is issued shall be unenforceable.")

       The court discussed 15A V.S.A. §4-112(c) in its decision to grant
  grandmother visitation, but  its determination to free A.S. for adoption
  was not premised on the applicability of the statute.   Indeed, to the
  extent the family court's opinion can be read to link visitation with a
  determination of  A.S.'s ultimate best interests, the decision is sensitive
  to the impact of visitation on the child's  integration into a new family. 
  The court advised that "[grandmother's] connection with A.S. be  maintained
  . . . so long as it is not detrimental to A.S. or her permanent placement
  with the Algers."   The court suggested that contact should be regular, but
  "infrequent, as one might see a close relative  who lives at a distance
  from the home."  Finally, the court explicitly conditioned visitation on 
  guidelines that limited contact to specific terms, including that the
  relationship develop in the context  of A.S.'s adoption by the Algers, in a
  manner which makes clear "that A.S. will be living in and be a  part of the
  Alger home throughout her childhood."

 

  The family court's mistaken view of the applicability of 15A V.S.A.
  §4-112(c) did not  materially affect its conclusions of law, nor the
  findings of fact which support them.  No purpose can  be served by a remand
  where, as here, there is clear and convincing evidence that the court's 
  disposition was in the child's best interests.


       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice