In re A. D. T.

In re A.D.T., Juvenile (2002-124); 174 Vt. 369; 817 A.2d 20

[Filed 01-Nov-2002]


       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. 2002-124


  In re A.D.T., Juvenile	                 Supreme Court

                                                 On Appeal from
                                                 Chittenden Family Court


                                                 August Term, 2002

  Ben W. Joseph and Dean B. Pineles, JJ.

  Allison N. Fulcher of Martin & Associates, Barre, for Appellant Father.

  Michael Rose, St. Albans, for Appellant Mother.

  William H. Sorrell, Attorney General, Montpelier, and Les Birnbaum,
    Assistant Attorney General, Waterbury, for Appellee.


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


       SKOGLUND, J.  The Chittenden Family Court terminated mother's parental
  rights in A.D.T. and B.D. in June 2001, and terminated father's rights in
  A.D.T. in a separate order issued in February 2002.  Mother's attorney did
  not appeal the June 2001 termination decision as she requested, and she now
  asks this Court to reinstate her appeal rights and reverse the termination
  order.  Although we take jurisdiction over mother's appeal, we affirm the
  order terminating her rights to both children.  We also affirm the court's
  order terminating father's rights in A.D.T.
   
       The factual and procedural complexity of this appeal requires a
  somewhat detailed recitation of the facts and circumstances below.  Mother
  gave birth to B.D. on October 5, 1994.  In November 

 

  1997, B.D. came into the custody of the Commissioner of the Department of
  Social and Rehabilitation Services ("SRS"), along with B.D.'s younger
  brother J.D. (FN1)  Prior to their placement in SRS custody, the children
  lacked stable housing, and mother was involved in criminal activity,
  struggled with substance abuse problems, and had other mental health issues
  bearing on her ability to parent.  In October 1998, mother had made enough
  progress on her SRS-prepared plan of services that the agency placed B.D.
  back in mother's care.  By February 1999, mother's progress stagnated.  She
  spent two days in prison for a probation violation, and, without informing
  SRS, left B.D. with an inappropriate caregiver.  She discontinued
  counseling, quit her job, and tested positive for opiates at the end of
  March. SRS removed B.D. from mother's care once again on April 20, 1999. 
  On April 22, mother took B.D. from day care and fled Vermont.  Five days
  later, mother was arrested in Chicago and charged with custodial
  interference.  On June 29, 1999, SRS moved to terminate mother's rights to
  B.D. and J.D.  On December 10, 1999, mother was sentenced to serve one to
  four years on the custodial interference charge.  At that time, mother was
  pregnant with A.D.T.
   
       A.D.T. was born on December 22, 1999 while mother was incarcerated. 
  SRS removed the child from mother's care immediately upon her birth.  The
  trial court adjudicated A.D.T. a child in need of care and supervision
  ("CHINS") on February 8, 2000.  The next month, SRS petitioned to terminate
  mother's parental rights to the child, but not the rights of A.D.T.'s
  father, who was unknown at the time.  
   
       Between April 1999 and December 2000, mother was in and out of prison. 
  While out on furlough in June 2000, mother sought visitation with her
  children.  She had not seen B.D. since April 

 

  1999 and last saw A.D.T. when the child was born.  The court denied
  mother's request.  It noted that termination petitions were pending, a
  significant question existed about mother's compliance with the case plan,
  and resumption of contact could be disruptive for the children in light of
  mother's lack of contact with them.  The court decided that it would
  determine the appropriateness of visitation after evidence in the
  termination hearing was presented, effectively denying mother's request
  during the pendency of the proceeding.  Sometime after the order, mother
  violated her furlough and was reincarcerated.

       Hearings on the termination petitions concerning mother's parental
  rights took place in September, October, and November 2000.  In December
  2000, father's paternity of A.D.T. was finally established.  Mother was on
  furlough at that time, but on January 21, 2001, she left Vermont for
  Nevada.  In April 2001, mother wrote her attorney and stated her intent to
  appeal the order she anticipated would flow from the termination hearings. 
   
       The court issued its termination order regarding mother's rights in
  B.D. and A.D.T. on June 14, 2001. (FN2)   Despite mother's April 2001
  letter, her attorney did not file a notice of appeal within thirty days of
  that order.  During the appeal period, mother was incarcerated in Reno,
  Nevada.  She returned to Vermont pursuant to an extradition proceeding on
  August 2, 2001.  On August 31, 2001, mother's attorney notified her of the
  June 14, 2001 termination order for the first time.  As a result, mother
  wrote the court in early September and October asking to appeal the June
  termination order. 

 

  She explained that she did not know about the June order until August 31,
  2001.  The court took no immediate action on either request.

       SRS's petition to terminate father's rights in A.D.T. was filed in
  July 2001 and heard on December 14, 2001.  Father was not present at the
  hearing, although his attorney was.  The court terminated father's rights
  in a February 19, 2002 order.  The court found that father had refused to
  participate in disposition planning for A.D.T., did not return phone calls
  from the SRS caseworker assigned to the case, had not contacted the
  caseworker to inquire about A.D.T's well being, and has never had any
  contact with A.D.T. since her birth.  The court concluded that termination
  of father's rights in A.D.T. was warranted because clear and convincing
  evidence established that father is neither willing nor available to
  provide a home for A.D.T., and that there was no reasonable likelihood that
  father could become a parent to the child within a reasonable period of
  time.

       Two days after the court terminated father's rights, and through new
  counsel the court appointed for mother in January 2002, mother filed a
  motion under 33 V.S.A. § 5532 to vacate or modify disposition of A.D.T. and
  B.D.  In her motion, mother asked the court to reissue the June 14, 2001
  termination order to give her another opportunity to appeal in light of her
  original counsel's failure to file a timely appeal.  The court denied the
  motion on March 13, 2002.  On March 15, 2002, father appealed the February
  19, 2002 order terminating his rights in A.D.T.  On March 27, 2002, mother
  filed a notice of appeal purporting to appeal the (1) March 13, 2002 order
  denying her motion to vacate/modify, (2) February 19, 2002 order
  terminating father's rights in A.D.T., and (3) June 14, 2001 order
  terminating mother's rights in B.D. and A.D.T. (FN3)

 
      
       We first address mother's claim that she is entitled to appeal the
  family court's June 14, 2002 decision terminating her rights to B.D. and
  A.D.T. notwithstanding the fact that her notice of appeal was filed outside
  the thirty-day time period.  Mother presents two rationales for reinstating
  her otherwise lost appeal rights.  First, as to A.D.T., mother argues that
  her notice of appeal was timely because she filed it within fourteen days
  of father's notice of appeal.  See V.R.A.P. 4 (if a timely notice of appeal
  has been filed by a party, any other party may file a notice of appeal
  within fourteen days of the first notice).  She asserts that the rights of
  both parents must be terminated and the child freed for adoption before an
  order terminating one parent's rights becomes final and appealable. 
  Second, mother argues that her lawyer's failure to follow her directive to
  appeal the June 14, 2001 order was per se ineffective assistance of
  counsel, and she is entitled to an appeal as a matter of law by showing
  only that she would have taken the appeal absent her lawyer's omission.  We
  address each argument in turn.
   
       An appealable order is one that finally disposes of the matter before
  the court by settling the rights of the parties on issues raised by the
  pleadings.  Woodard v. Porter Hosp., Inc., 125 Vt. 264, 265, 214 A.2d 67,
  69-70 (1965).  In this case, SRS moved to terminate mother's rights before
  the identity of A.D.T.'s father was known, and his rights were not subject
  to the termination petition.  Thus, the subject matter before the court was
  mother's rights only in A.D.T.  Once the court severed her legal
  relationship with the child, the matter before the court was finally and
  conclusively determined.   Although the juvenile court retained
  jurisdiction over A.D.T. after the June 14 order, that retention does not
  affect our appellate jurisdiction over a disposition order terminating
  parental rights in a child.  See V.R.F.P. 12(d)(2)(C) (when an appeal is
  taken in a juvenile case, juvenile court retains jurisdiction to modify or
  vacate its disposition order during pendency of appeal).  

 

  Moreover, in CHINS cases such as this, each petition to terminate parental
  rights after initial disposition commences a new and separate proceeding,
  even if the docket number does not change.  In re E.W., 169 Vt. 542, 544,
  726 A.2d 58, 61 (1999) (mem.).  Thus, SRS's July 2001 petition to terminate
  father's rights was a new and separate proceeding from the earlier
  termination proceeding involving mother.  
   
       There are important policy reasons supporting our conclusion that a
  parent whose rights have been terminated need not wait until the other
  parent's rights are terminated before appealing the termination order. 
  Juvenile court disposition orders, including termination orders, are not
  automatically stayed during the appeal period as are most other civil
  orders.  V.R.F.P. 12(a)(2)(C).  Upon termination, therefore, SRS has no
  obligation to include that parent in further case planning for the child,
  allow visitation, or make any efforts to reunify the child with the parent. 
  Without an immediate appeal, the child's interest in finality cannot be
  met, and the parent's interest in resuming a relationship with the child if
  the termination order was erroneous is severely impaired.  In a case like
  this where one parent's identity is unknown, there may be a significant
  time period between the termination of the known parent's rights and the
  final adjudication of the other parent's rights.  The passage of time in
  that instance could work an even greater hardship on the parties if an
  appeal must wait.  Indeed, under mother's theory, until the rights of the
  other parent are terminated - an event that may never occur - the parent
  whose rights were terminated first would have no opportunity to appeal. 
  That result is simply untenable.  There may be an occasion we cannot now
  anticipate when a court adjudicating the rights of both parents in one
  proceeding issues separate orders regarding each parent which might affect
  the time period for appeals; but that situation is not present in this
  case.  With respect to mother, therefore, the June 14, 2001 order
  terminating her rights in A.D.T. was 

 

  final and appealable.  Her attempt to appeal that order by filing a notice
  of appeal fourteen days after father's appeal from the February 19, 2002
  order terminating his rights was ineffective.
   
       Mother also claims that she should be heard on the merits of her
  untimely appeal of the June 14, 2001 order with respect to B.D. and A.D.T.
  because she did not receive effective assistance of counsel.  We decline to
  decide whether, and under what circumstances, a parent may raise an
  ineffective-assistance-of-counsel claim in a termination proceeding under
  Title 33.  We conclude, however, that the facts of this particular case
  require us to invoke our authority under 4 V.S.A. § 2(b) to reach the
  merits of mother's appeal as "necessary to the furtherance of justice." 
  See 4 V.S.A. § 2(b) (Supreme Court has jurisdiction "to issue all . . .
  orders that may be necessary to the furtherance of justice"); In re J.C.,
  169 Vt. 139, 145, 730 A.2d 588, 592 (1999) (invoking 4 V.S.A. § 2(b) to
  reinstate lost appeal rights in superior court in probate action to avoid
  unduly harsh result); see also In re T.M.C., 988 P.2d 241, 244 (Kan. Ct.
  App. 1999) (determining that fundamental fairness requires appellate court
  to hear mother's appeal from termination of parental rights order where
  mother's attorney failed to inform her of appeal period and took no action
  to file a timely appeal on her behalf).  In this case, it is undisputed
  that mother wrote her attorney prior to the June 2001 decision asking him
  to appeal the anticipated order.  In explaining to the trial court his
  failure to follow mother's directive, mother's attorney stated that he
  simply missed the appeal deadline and there was "really no excuse for it." 
  Mother wrote the court asking for permission to appeal the June 2001 order
  within days of being informed of the court's decision following her return
  to Vermont from Nevada.  When the court did not respond, mother wrote again
  reiterating her desire to appeal the termination decision.  Mother was thus
  reasonably prompt in attempting to perfect her appeal after she received
  notice of the decision.  Considering the important rights at stake in this
  case, the 

 

  reasons for mother's untimely appeal, and the fact that the parties have
  argued the merits of mother's appeal in their briefs, we address the
  substance of mother's appeal to advance the interests of justice and
  fundamental fairness.  

       Although we find good reason to address the merits of mother's appeal,
  we find no error in the court's decision to terminate her rights in both
  B.D. and A.D.T.  The court has discretion to determine whether termination
  is in the child's best interests.  In re D.M., 162 Vt. 33, 38, 641 A.2d 774, 777 (1994).  We will uphold a termination order if the court's
  findings are not clearly erroneous and support the court's conclusions. 
  Id.

       Mother argues that the court's termination order relies too heavily on
  her lack of contact with the children because the court denied her request
  for visitation.  She claims that our decision in In re D.P., 147 Vt. 26,
  510 A.2d 967 (1986), precludes the court from using its denial of
  visitation against mother in determining whether to terminate her rights. 
  Mother's argument is unpersuasive.  First, mother reads In re D.P. too
  broadly.  In that case, we explained that if the juvenile court denies
  parent-child contact pending an appeal from an order terminating parental
  rights, and the order is later reversed by this Court, the lack of contact
  pending appeal cannot be used against the parent in a later termination
  proceeding.  147 Vt. at 33, 510 A.2d  at 971.  In this case, mother's claim
  focuses on a different time period in the termination process.  In contrast
  to In re D.P., mother's lack of contact resulted first and foremost from
  her own conduct prior to the termination decision.  That conduct caused
  mother's repeated imprisonment and her consequent estrangement from B.D.
  and A.D.T.  Notably, mother does not argue that it would have been
  appropriate for her to have contact with the children while she was in
  prison, nor does she claim that the court erred by denying her visitation
  while the termination petitions were pending.  

 
   
       Second, the court's order reflects that it considered all relevant
  factors in deciding that termination was in B.D. and A.D.T.'s best
  interests, and that it did not rely primarily on the lack of a relationship
  between mother and the children in reaching its decision.  See 33 V.S.A. §
  5540 (court must consider the child's best interests when considering a
  petition to terminate parental rights to the child).  On the most important
  statutory factor, mother's ability to resume her parental duties within a
  reasonable time, see In re B.M., 165 Vt. 331, 336, 682 A.2d 477, 480 (1996)
  (critical factor in termination of parental rights case is whether parent
  can resume parental duties within a reasonable period of time), the court
  noted that mother's initial progress on the plan of services suffered from
  her lack of follow through.  She made impulsive decisions that foreclosed
  parenting opportunities as reflected in her ongoing criminal behavior and
  repeated imprisonment.  Mother demonstrated an inability to make her
  children's needs a priority over her own, and failed to comprehend how her
  behavior had an impact on them.  She stopped counseling and lacked a stable
  residence.  The court found that at the time of the termination hearing,
  mother was not able to offer the children stability or permanence, and that
  she lacked the prospective ability to become a parent to B.D. and A.D.T.
  within a reasonable period of time.  Mother does not challenge those
  findings, which we conclude amply support the court's decision to terminate
  mother's parental rights.  
   
       Mother also argues that it was error to terminate her rights in A.D.T.
  because it was unnecessary to do so.  Mother posits that because the rights
  of A.D.T.'s father remained intact after the June 2001 order, the court
  should have allowed her to continue to work towards reunification.  Again,
  whether it was in A.D.T's best interests to terminate mother's rights was a
  matter left to the trial court's discretion, which we have just determined
  the court exercised properly.  We find no 

 

  reason to change our conclusion based on the fact that A.D.T.'s father's
  rights had yet to be determined as discussed previously. 

       We turn now to father's appeal.  Father claims the court erred because
  no clear and convincing evidence established that he was unfit to resume
  his parental duties within a reasonable period of time.  We disagree.  The
  evidence in the record firmly establishes that father has had no personal,
  custodial, or financial relationship with A.D.T., and has not demonstrated
  any interest in being a parent to the child.  Father's claim here is ironic
  because he never assumed his parental duties to A.D.T. in the first place. 
  We reject father's assertion that in cases like this where a parent has
  never met his child, refused to participate in the case planning process
  for the child, and failed to demonstrate the slightest interest in the
  child's well being or circumstances, the juvenile court must have some
  evidence about the parent's parenting abilities before severing the legal
  parent-child relationship.  A parent who has completely refused to have any
  relationship with, or to take responsibility for, his child, as father has
  done with respect to A.D.T., is per se unable to resume his parental
  duties, and termination is appropriate if the court determines the child's
  best interests require it.   The court so concluded in this case, and there
  was no error.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  B.D. and J.D. do not share the same father.  The rights of each
  child's father is not at issue in this appeal. 

FN2.  The court found sufficient evidence to terminate mother's rights in
  J.D., but it concluded that doing so was unnecessary at that time due to
  its decision not to terminate the rights of J.D.'s father.  The court did
  eventually terminate mother's rights in J.D. on January 28, 2002, and this
  Court affirmed that order on June 27, 2002.  Mother's rights in J.D. are
  therefore not at issue in this appeal.

FN3.  Mother's notice of appeal referred to B.D. and J.D. which is
  perplexing because the June 14, 2001 order did not terminate her rights in
  J.D.  We therefore assume mother meant A.D.T.