Boisvert v. Harrington

Annotate this Case
Boisvert v. Harrington (99-523); 173 Vt. 285; 796 A.2d 1102

[Filed 25-Jan-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. 1999-523


Julie A. Boisvert	                         Supreme Court

                                                 On Appeal from
     v.	                                         Bennington Superior Court


Ronald and Sheila Harrington	                 November Term, 2000



Richard W. Norton, J.

Mary Welford, Manchester, for Plaintiff-Appellant.

Jonathan M. Cohen, Bennington, for Defendants-Appellees.


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


       SKOGLUND, J.   Mother Julie A. Boisvert appeals from an order of the
  superior court  denying her motion to terminate a guardianship over her
  minor son, Kelsey Harrington,  and ordering  an evidentiary hearing on the
  issue.  Mother contends: (1) the guardianship was  freely revocable  and,
  therefore, the court erred in ordering an evidentiary hearing; and (2) the
  court violated her  constitutional rights as a parent, and her
  constitutional right to due process.  We affirm. 

       This case concerns a twelve year old boy whose grandparents have
  served as his court-ordered guardians since he was thirteen months old. 
  The underlying facts are not well developed  because the matter was
  appealed before an evidentiary hearing, as ordered by the probate and 
 
 

  superior courts, could occur.  Certain facts, however, are undisputed.  The
  child was born in  November 1988.  Mother was not married to the child's
  father and he has since died.  In January  1990, mother petitioned the
  probate court to appoint her mother and step-father, Sheila and Ronald 
  Harrington, as guardians for the boy.  Finding that a transfer of custody
  was "in the best interest of  the child," the court granted the petition. 
  In 1996, mother was incarcerated for two months.  Since  that time, the boy
  has resided primarily with the Harringtons, and has not had contact with
  mother  since August 1997.  Mother  acknowledges that after her release
  from prison, she abducted the minor  and was charged with custodial
  interference.  

       We note, as well, the extensive probate court record in this case
  (which we may judicially  notice) which contains numerous status reports
  and two psychological evaluations by a court-appointed clinical
  psychologist, one submitted to the court in January 1998 and a second in
  August  1999.  These records evidence a high level of family conflict and a
  troubled relationship between the  minor and mother, resulting in a court
  order requiring that visits between the minor and mother be  supervised. 

       In February 1999, mother moved again to terminate the guardianship. 
  She argued that  because she had consented to the guardianship under 14
  V.S.A. § 2645(4), it should be freely  revocable without the necessity of
  an evidentiary hearing or any showing that revocation was in the  best
  interests of the minor. (FN1)  The probate court ruled that termination of
  the guardianship was  governed by 14 V.S.A. § 3003 and §  3004, which
  require a hearing to determine if the parent is then 

 

  the proper person to have care and custody of the child. (FN2)   The
  probate court thus denied the  request for automatic revocation and ordered
  an evidentiary hearing.  Mother appealed to the  superior court,  which
  upheld the decision of the probate court, ruling that the probate court has 
  "inherent authority over a guardianship created under its authority . . .
  regardless if the guardianship  was a voluntary or involuntary one."  The
  court concluded that the original guardianship order had  found mother to
  be "unsuitable," and thus the hearing procedures for terminating a
  guardianship  under § 3003 and §  3004 were appropriate.  This appeal
  followed.

       Before we address the merits of the appeal, we clarify the basis for
  our jurisdiction.   Following its decision, the superior court remanded the
  case to the probate court to conduct an  evidentiary hearing.  Thus, there
  is no final judgment in the case because that decision did not  resolve the
  controversy between the parties.  See Huddleston v. Univ. of Vt., 168 Vt.
  249, 251, 719 A.2d 415, 417 (1998).  Under these circumstances, mother's
  proper recourse should have been to  request permission to take an
  interlocutory appeal pursuant to V.R.A.P. 5(b), which she failed to do.  
  According to V.R.A.P. 2, however, we have discretion to suspend
  "application of Rule 5 where  dismissal would most likely result in another
  appeal after remand, the merits of the question of law  were fully briefed
  and argued, and the Court has expended valuable time on the case."  In re
  Smith,  169 Vt. 162, 167, 730 A.2d 605, 609 (1999).  Given that these
  requirements have been met in this  case, we entertain this appeal under
  V.R.A.P. 2.

 

       In denying mother's request to revoke the guardianship, the lower
  courts based their decisions  on their interpretation of Vermont's
  guardianship statutes.  There are five statutory devices for  creating a
  guardianship:

    1) When the minor has no parent living authorized to act as
    guardian;  or
    2) When the parent is under guardianship or shown to be
    incompetent  or unsuitable to have the custody of the person of
    the minor; or
    3) When the parent of the minor resides without the state and has
    so  resided for three years and has not contributed to the minor's
    support  during such time . . .; or
    4)When no parent objects and transfer of custody is in the best 
    interest of the minor . . .; or
    5) When the minor has a parent living and the minor is the owner
    of  real or personal property . 

  14 V.S.A. § 2645. (FN3)

       There are also express statutory provisions for the termination of a
  guardianship issued under  § 2645(2) (when the parent is shown to be
  "incompetent or unsuitable"), see 14 V.S.A. §§ 3003,  3004, but the
  statutes are silent on the termination of court-ordered guardianships under
  14 V.S.A. §  2645(4) ("when no parent objects and transfer of custody is in
  the best interest of the minor").  This  tells us little in itself.  Prior
  to the enactment of § 2645(4) in 1982, see 1981 (Adj. Sess.) No. 153 § 1, 
  the statute contained only the equivalent of § 2654(2) for the appointment
  of guardians in cases of  parental incompetence or unsuitableness, and the
  revocation statute not surprisingly 

 

  addressed only this circumstance. When § 2645(4) was added, the Legislature
  failed to adopt a  parallel amendment establishing procedures or standards
  for revocation of guardianships established  under the new provision.

       The omission does not, however, leave us entirely without legislative
  guidance.  As noted,  prior to the addition of § 2645(4) to the
  guardianship statute, it contained a provision for  appointment of a
  guardian upon a showing that the parent was incompetent or unsuitable, and
  a  parallel provision for revocation of the guardianship if, after a
  hearing, the court "is of the opinion  that the parent is then a proper
  person to have the care and custody of the child."  14 V.S.A. § 3004.  
  Having provided for a hearing on the merits of revocation when the parent
  has been found  "incompetent or unsuitable" under § 2645(2), it is
  reasonable to assume that the Legislature intended  a similar hearing when
  custody was transferred in the "best interest of the minor" under §
  2645(4).   In either case, revocation would be contingent upon a finding,
  after hearing, that the circumstances  which precipitated the transfer of
  custody no longer obtained. 

       Mother emphasizes the statutory requirement that she not "object"  to
  the guardianship under  § 2645(4), a requirement not present under §
  2645(2).  This alone does not suggest that she may  revoke the guardianship
  at her whim.  The statute also requires a finding that the transfer of
  custody  be in the "best interest of the minor."  It stands to reason that,
  in revisiting its previous ruling, a court  should be persuaded that the
  guardianship is no longer in the child's best interest. Certainly this 
  appears to be more consistent with the legislative scheme than automatic
  revocation.

       It is also more consistent with child custody and guardianship law as
  a whole. It is   fundamental that the State's paramount and indefeasible
  duty in custody determinations is to 

 

  safeguard the welfare of the child.  As we explained in Paquette v.
  Paquette, 146 Vt. 83, 90, 499 A.2d 23, 28-29 (1985):

         [T]he courts of this state have long recognized that, even in
    those  early days when custody of a child was viewed as a form of
    property  right, "the natural right of the father to the custody
    of his child cannot  be treated as an absolute property right, but
    rather as a trust reposed in  the father by the state as parens
    patriae for the welfare of the infant."

  Id. (quoting Bioni v. Haselton, 99 Vt. 453, 457, 134 A. 606, 607 (1926)). 

       Nowhere is this more evident than in the guardianship context.   In
  this, as in most states, the  probate court essentially exercises a
  continuing jurisdiction over both the guardian and the ward, and  may
  suspend the guardian for a failure to perform his or her statutory duties. 
  See 14 V.S.A. §  3011  (when guardian fails to perform duties, court may
  suspend guardian and appoint special fiduciary).    Indeed, in appointing a
  guardian the court assumes the primary responsibility to protect the minor
  or  others who are unable to care for themselves.  "In reality the court is
  the guardian; an individual who  is given that title is merely an agent or
  arm of that tribunal in carrying out its sacred responsibility."  
  Kircherer v. Kircherer, 400 A.2d 1097, 1100 (Md. 1979); see also In re
  Carstens' Guardianship, 37 N.W.2d 581, 584 (Neb. 1949) (guardian is "an
  officer of the court," which enjoys "broad judicial  discretion in the
  matter of removal or refusal to remove a guardian"); Clendenning v. McCall,
  60 N.E.2d 676, 681 (Ohio 1945) ("A guardian is an officer of the court
  appointing him . . . .  A guardian  appointed by a court . . .  is always
  under the court's control and is subject to its directions and 
  supervision.").  Thus, interpreting the statute to divest the court of its
  plenary authority to continue or  revoke a guardianship - and place that
  authority instead in the parent who was removed from custody - would
  represent a  fundamental break with traditional common law 

 

  principles.  See Swett v. Haig's, Inc., 164 Vt. 1, 5, 663 A.2d 930, 932
  (1995) (statutory language of  uncertain meaning will not be construed to
  change or abrogate common law rules).

       Mother cites no authority to support the concept of a "freely
  revocable" guardianship, nor has  our research disclosed any case law or
  statutes embodying such a scheme.  On the contrary, while the  cases
  uniformly acknowledge a presumption in favor of parental custody, all
  recognize that the  presumption may be overcome through an evidentiary
  showing that continuation of the guardianship  remains in the child's best
  interest.  In In re Williams, 869 P.2d 661 (Kan. 1994), for example, the 
  trial court not only held an evidentiary hearing on the mother's petition
  to terminate the guardianship  over her son, but took "considerable
  testimony" on the respective parenting abilities of the mother  and the
  guardian, and denied termination of the petition.  Id. at 663.  Although
  the Kansas Supreme  Court ruled that the trial court had erred in failing
  to apply a parental preference, there was no  suggestion by the court that
  the mother was entitled to automatic revocation.  Similarly, in In re R.B., 
  619 N.E.2d 952, 955 (Ind. Ct. App. 1993) the trial court made specific
  findings that demonstrated  "ample support for the decision...that it was
  in R.B.'s best interest to be in [his mother's] custody."   The governing
  statute provided that a court may terminate a guardianship if the
  guardianship is "no  longer necessary for any reason."  Id. at 954 
  "Because sufficient evidence was presented to the effect  the guardianship
  was no longer necessary," the statute was satisfied.  Id.  In  In re
  Stewart, 369 N.W.2d 820, 824 (Iowa 1985), the court observed that the
  parental preference doctrine was not the  "controlling factor." Rather,
  "[a]s in all child custody matters the first and governing consideration 
  must be the best interest of the affected child."  Id.  

       In all of these cases, the courts recognized certain fundamental
  principles:  that the proper  inquiry in a termination of guardianship
  proceeding is the best interests of the minor;  that there is a 

 

  presumption the minor's best interests lie with parental custody; and that
  the burden is on the party  opposing revocation to overcome this
  presumption.  None, however, supports the proposition that the 
  guardianship is "freely revocable" at the will of the parent.  On the
  contrary, to recognize these  principles is to acknowledge that they must
  apply in some evidentiary setting in which the non-parent  carries the
  burden.  This precludes, by definition, the concept of revocation at will.

       Moreover, the parental preference doctrine is only that - a preference
  - an advantage given  to parents over other persons.  It does not answer
  the question of what is in the child's best interest. 

         The day is long past in this State, if it had ever been, when
    the  right of a parent to the custody of his or her child, where
    the  extraordinary circumstances are present, would be enforced 
    inexorably, contrary to the best interest of the child, on the
    theory  solely of an absolute legal right.  Instead, in the
    extraordinary  circumstance, when there is a conflict, the best
    interest of the child  has always been regarded as superior to the
    right of parental custody.   Indeed, analysis of the cases reveals
    a shifting of emphasis rather than  a remaking of substance.  This
    shifting reflects more the modern  principle that a child is a
    person, and not a subperson over whom the  parent has an absolute
    possessory interest.  A child has rights too,  some of which are
    of a constitutional magnitude. 

  Bennett v. Jeffreys, 356 N.E.2d 277, 281 (N.Y. App. Div. 1976) (quoted with
  approval in Paquette v.  Paquette, 146 Vt. 83, 88-89, 499 A.2d 23, 28
  (1985)).  

       Finally, mother suggests that an inquiry into the minor's best
  interests would violate her  parental or due process rights because there
  is no assurance that the initial guardianship proceeding  was accompanied
  by adequate procedural safeguards.  See Rutherford v. Best, 139 Vt. 56, 63,
  421 A.2d 1303, 1307  (1980)  (when probate proceeding is used to separate
  parent and child,  "fundamental fairness requires that an adequate record
  be prepared and that the probate judge make  findings, so that on appeal to
  this Court, we can determine whether the record supports the findings 

 

  and whether the findings support the judgment").  The answer to this
  concern is simply for probate  courts in § 2645(4) guardianship proceedings
  to ensure that the parents are aware of their rights, and  that an adequate
  record and findings are prepared.  Although the record of the initial
  guardianship  proceeding in this case was apparently not available for
  review, it is undisputed that the probate court  made an express finding
  that the guardianship was in the best interests of the minor, and there is
  no  indication that the finding was unsupported by the evidence or that
  mother was denied due process.   See State v. Brown, 165 Vt. 79, 87, 676 A.2d 350, 355 (1996) ("presumption of regularity" attaches  to prior
  judicial proceedings).
      	
       The right to care for one's children is a fundamental liberty
  interest, recognized and protected  by this and the United States Supreme
  Court.  See Stanley v. Illinois, 405 U.S. 645, 651 (1972);  Rutherford, 139
  Vt. at 60, 421 A.2d  at 1306.  Thus, a parent who seeks to revoke a
  guardianship  under § 2645(4) enjoys a presumption that his or her custody
  is in the child's best interest.  However,  nothing in our constitutional
  or statutory scheme, the common law, or general practice supports the 
  proposition that the guardianship is terminable at will.  Where, as here,
  the current guardians and the  minor's court-appointed attorney oppose
  revocation, the court must be free to order an evidentiary  hearing to
  determine whether granting the petition is in the best interests of the
  child. (FN4) 

 

       This decision does no violence to the parental preference doctrine; it
  does not grant guardians  greater rights than a natural parent. (FN5)  What
  it does, is recognize that when a petition for  guardianship was brought
  before it, a court of law agreed with a natural parent and made a 
  determination that the child would be better off with someone other than
  the parent as guardian.  The  court then assumed primary responsibility for
  the child.  The dissent's approach would permit a  parent who relinquished
  guardianship of their child to revoke the court's order transferring 
  guardianship and resume their role as parent without any evaluation by the
  court of what this change  might do to the child's well-being or best
  interests. This denigrates the role of the probate court and  reduces its
  determinations to a mere piece of paper.

       Affirmed.              


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice



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

FN1.  As discussed more fully below, § 2645(4) provides for appointment of a
  guardian for a  minor "[w]hen no parent objects and transfer of custody is
  in the best interest of the minor." 

FN2.  Section 3003 provides that when, "by reason of the incompetency or
  unsuitableness of a  parent," another person has been appointed guardian,
  the parent may at any time file a motion for  removal of the guardian, and
  the court shall schedule a hearing on the matter.  Section 3004 provides 
  that the court may revoke the guardianship if, after hearing, it is "of the
  opinion that the parent is  then a proper person to have the care and
  custody of the child." 

FN3.  Although the lower courts construed the guardianship order in this
  case to create a  guardianship under § 2645(2) (when the parent is shown to
  be "incompetent or unsuitable"), this  conclusion is unsupported by the
  record, which shows that it was created under § 2645(4) (when "no  parent
  objects and transfer of custody is in the best interest of the minor"). The
  superior court relied  on a finding of the probate court in its 1990 order,
  which stated: "The mother is presently unable to  provide adequate and
  proper care." The court construed this to represent a finding that mother
  was an  "unsuitable parent" under § 2645(2), although the probate court
  never used this language. The  guardianship petition was brought under §
  2645(4), and the court's express finding that a transfer of  custody was
  "in the best interest of the child" compels the conclusion that the
  petition was granted  on the basis in which it was brought.    

FN4.  Where the guardians choose not to oppose revocation, but the
  circumstances otherwise  raise concerns about the welfare of the child, the
  court may appoint counsel for the child and a  guardian ad litem - if they
  have not been previously appointed - to investigate the circumstances,  and
  may then determine whether an evidentiary hearing is necessary. See
  V.R.F.P. 6(c)(2)  (authorizing appointments by probate court). The mere
  fact that the guardians acquiesce in the  parental petition to revoke does
  not, however, compel the court to grant the petition.  As noted, the  court
  retains inherent authority over guardianships created under its auspices,
  and the ultimate  responsibility to ensure that revocation is in the
  child's best interests.  That responsibility cannot be  delegated to the
  current guardians, or to anyone else.        

FN5.  And it, in no way, disturbs our holding or rationale in In re S.B.L.,
  150 Vt. 294, 553 A.2d 1078 (1988) as suggested by the dissent.  In re
  S.B.L. was an initial custody dispute between the father  of a child born
  out of wedlock and a grandparent.  What is at issue here is the assertion
  by a parent that  she may unilaterally revoke or overturn a probate court's
  decision, an issue not presented in In re S.B.L..


------------------------------------------------------------------------------
                          Concurring and Dissenting


       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. 1999-523


Julie A. Boisvert	                         Supreme Court

                                                 On Appeal from
     v.	                                         Bennington Superior Court


Ronald and Sheila Harrington	                 November Term, 2000


Richard W. Norton, J.

Mary Welford, Manchester, for Plaintiff-Appellant.

Jonathan M. Cohen, Bennington, for Defendants-Appellees.


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


       JOHNSON, J., concurring in part and dissenting in part.   A child may
  not be kept from  his parent by a non-parent unless the parent has been
  determined to be unfit.  Although the majority  agrees that there has been
  no finding of unfitness in this case, it holds that a mother who
  voluntarily  relinquished her son to her parents at a time when she was
  unable, not unfit, to care for him may not  have the child back without
  proving that the change of custody is in the best interests of the child. 
  In  so holding, the majority has ignored recent Vermont precedent holding
  to the contrary and has  fashioned a standard for terminating a voluntary
  guardianship that ignores mother's fundamental   right to a relationship
  with her child, as protected by the due process clause.  U.S. Const. amend.
  V.  

 

  Accordingly, I concur in the judgment remanding the matter for a hearing,
  but I respectfully dissent  from the majority's best interests standard.

                                     I.

       The majority paints a version of the facts in this case on the basis
  of its judicial notice of the  probate court record, inferring a high level
  of family conflict and a troubled relationship between the  minor and
  mother, based on the number of docket entries and two psychological reports
  in the file.   The implication from this discussion, which has no relevance
  to the legal issue at hand, is that  mother was unfit when the voluntary
  guardianship was created  or is unfit now.  Because we all agree  this was
  a voluntary guardianship, however, we have no evidence to judge why mother
  entered into  it.  If we were to fill in the story with mother's version of
  the facts from her appellate brief, a  different picture emerges.

       Mother, age 19, and son Kelsey lived with mother's parents after
  Kelsey's birth in 1988.   Mother petitioned the probate court to have the
  guardianship established in 1990.  Mother then  married Gaston Boisvert,
  and mother and Kelsey moved out of the grandparents' house and lived  with
  Gaston Boisvert as a family, although Kelsey continued to visit his
  grandparents on weekends.   This arrangement continued until February of
  1996 when Mrs. Boisvert was incarcerated for 60 days.  At that time, Kelsey
  was seven years old.  When she was released, she attempted to resume 
  custody  of Kelsey.  Apparently, her parents objected, and Mrs. Boisvert
  was charged with custodial  interference because she refused to return
  Kelsey to his grandparents.  Since that time, Kelsey has  lived with his
  grandparents, and visits with mother had to be set up through the probate
  court.   Mother alleges that the grandparents were uncooperative with the
  visits.

  

       In an attempt to regain custody, mother filed a pro se petition to
  terminate the guardianship in  April of 1996.  The court refused to
  terminate the guardianship on the ground that it was not in the  child's
  best interest.  The next two and one-half years, as mother alleges, were
  "consumed" with her  attempts to maintain contact with her son.  On
  February 11, 1999, with the assistance of counsel, she  moved to terminate
  the guardianship once again, which eventually resulted in the appeal we
  have  before us.

       If we were to accept mother's version of the story, we might infer
  that mother, at age 19 and   hardly emancipated, was pressured to create
  the guardianship by her parents, and that any conflict  between mother and
  minor does not result from mother's unfitness, but has been created by the 
  grandparents' intentional interference in that relationship.  But, I do not
  begin to suggest that we  accept either the majority's inferences from the
  facts or the facts according to mother's brief.  I  present them to
  emphasize why, when two very different scenarios can be reasonably inferred
  from  this case,  we should not be speculating about the facts, but dealing
  with mother's legal status.  That  legal status is that mother entered into
  a voluntary guardianship, and that she has not been   determined in any
  court of law to be an unfit parent. 

                                     II.

       The right to care for one's children is a fundamental liberty interest
  that has long been  protected by both the United States Supreme Court and
  this Court.  See Troxel v. Granville, 530 U.S. 57, 65 (2000) ("The liberty
  interest . . . of parents in the care, custody, and control of their
  children-is  perhaps the oldest of the fundamental liberty interests
  recognized by this Court.").  In Santosky v.  Kramer, 455 U.S. 745, 753
  (1982), the United States Supreme Court reaffirmed the Court's historical 
  recognition of parents' fundamental liberty interest in the care, custody
  and 

 

  management of their children, even when they have not been model parents or
  have lost temporary  custody of their child to the State.  The Court held
  that parents were entitled to a clear and  convincing evidence standard of
  proof when the termination of their parental rights were at stake.  It 
  relied on a series of decisions holding that "freedom of personal choice in
  matters of family life is a  fundamental liberty interest protected by the
  Fourteenth Amendment" to the Constitution of the  United States.  Id.  See
  Lassiter v. Department of Social Services, 452 U.S. 18 (1981); Moore v.
  East  Cleveland, 431 U.S. 494, 499-500 (1977); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Prince v.  Massachusetts, 321 U.S. 158, 166, (1944);
  Pierce v. Society of Sisters, 268 U.S. 510, 534-535  (1925); Meyer v.
  Nebraska, 262 U.S. 390, 399 (1923).  See also M.L.B. v. S.L.J, 519 U.S. 102, 119-120, (1996); Skinner v. Oklahoma, 316 U.S. 535, 541 (1941).

       In recognition of the fundamental nature of the underlying rights, the
  Court has given other   procedural due process protections to the
  termination of those rights.  It held in Stanley that the Due  Process
  clause of the Fourteenth Amendment prevents the state from presuming the
  unfitness of an  unwed father. 405 U.S.  at 657.  Therefore, a hearing is
  required before children may be taken from  such a parent.  Id.  In M.L.B.,
  519 U.S.  at 120, the Court held unconstitutional a state statute  requiring
  an indigent parent in a termination proceeding to pay record preparation
  fees in advance of  filing an appeal from an adverse determination.  It
  noted the Court's unanimous view that " 'few  consequences of judicial
  action are so grave as the severance of natural family ties.' " 519 U.S.  at
  119  (quoting Santosky, 455 U.S.  at 787 (Rehnquist, J., dissenting)).

       Relying in part on Stanley, we have held that any hearing under the
  involuntary guardianship  statute, 14 V.S.A. §2645(2), must contain full
  procedural safeguards attendant to a proceeding that  implicates such
  fundamental interests.  Rutherford v. Best, 139 Vt. 56, 62-63, 421 A.2d 1303, 1307 

 

  (1980).  Furthermore, the substantive showing required to prove a parent
  unsuitable is considerable.   In Rutherford, we established that proving a
  parent "unsuitable" required a showing that "the child  has been abandoned
  or abused by the parent, or that the child is without proper parental care
  or  subsistence, education, medical or other care necessary for his
  well-being."  Id. at 61, 421 A.2d  at  1306. (FN1)

       In this case, it is beyond dispute that none of the procedural or
  substantive hurdles required  by the Constitution for separating a child
  from his mother because of parental unfitness were met at  the original
  guardianship hearing in 1990 because the guardianship was voluntary. (FN2) 
  Therefore,  the question for decision is how mother, a fit parent,
  terminates a voluntary guardianship and  assumes custody of her son.

 

       There is no statutory procedure to terminate a voluntary guardianship,
  that is, a guardianship   not based on the unfitness of the parent. (FN3) 
  The majority concludes from this gap in the statutes  that the Legislature
  must have intended that a parent petitioning to terminate a voluntary 
  guardianship should be required to prove not only that she is a fit parent,
  but that the transfer of  custody is in the child's best interest.  It
  reaches this conclusion by rewriting the guardianship statute  and erasing
  any distinctions the Legislature has actually expressed between types of
  guardianships.   See 14 V.S.A. §§ 2645(1)-(5) (subsections creating
  separate guardianships for different situations).  (FN4)

       As a matter of statutory construction, the majority opinion goes too
  far.  It has fashioned an  entirely new statute that cannot be justified
  under any view of our powers to interpret and effectuate  the Legislature's
  intent.  It is sometimes necessary for courts to imply a statutory term
  where the  statute is deficient, but the term supplied must be more than
  "advantageous or convenient" to the  major power conferred, and it is
  "never permitted to contradict the act" involved.  N. Sutherland,  Statutes
  and Statutory Construction, § 55:03 at 386 (6th ed. 2000); see In re United
  Mo. Bank of  Kansas City, 901 F.2d 1449, 1457 (8th Cir. 1990).  But that
  error pales in significance to the fact that  the majority has created a
  statute that is unconstitutional.  See In re S.B.L., 150 Vt. 294, 305, 553 A.2d 1078, 1085 (1988) (parent's due process rights require that he be
  determined to be unfit in  contest with third party non-parent); In re
  Guardianship of Williams, 869 P.2d 661, 665-66 (Kan.  1994)(citing prior
  decision in Sheppard v. Sheppard, 630 P.2d 1121 (Kan. 1981), cert. denied
  455 U.S. 919 (1982)), holding unconstitutional Kansas statute that
  permitted non-parent, with consent of  a legal custodian after divorce, to
  disregard the parental preference doctrine and obtain legal  custody).  The
  majority's newly created statute is unconstitutional because it takes no
  account of  mother's constitutional right to raise her child, and it
  completely overlooks our decision in S.B.L..

       In S.B.L., we decided the crux of the issue in this case-how the
  constitutional right of a  parent to a custodial relationship with her
  child is protected in a contest between the parent and a  third party who
  seeks guardianship of the child.  There, we concluded that "granting
  guardianship to  a third person in preference to a parent who has
  demonstrated a commitment to parenthood based  solely on a judicial
  determination of the best interests of the child-without first requiring
  the third  party to demonstrate that the parent is unfit-denies the natural
  parent due process of law."  Id. at 305,  553 A.2d  at 1085 (emphasis
  added).  In S.B.L., a biological father of a child born out of wedlock 
  sought custody from S.B.L.'s grandfather after the death of the child's
  mother in an automobile  accident.  Because he was not married to S.B.L.'s
  mother, the father was unable to take advantage of  a statute, 14 V.S.A.
  2641, declaring the father and mother, if competent, the joint guardians of
  a  "legitimate minor child."  On the basis of this statute, this Court
  would have held that biological  parenthood, without more, did not provide
  the father with the rights of a parent under the  guardianship statute, 14
  V.S.A. 2645, and therefore the father had no greater right to the child
  than  the grandparent.  But the facts in S.B.L. demonstrated that the
  father had lived with the child and his  mother for the first six months of
  the child's life.  In view of his "demonstrated commitment" to the 

 

  child, under the holding in Lehr v. Robertson, 463 U.S. 248 (1983) (unwed
  father must demonstrate  commitment to child to obtain due process
  protection of relationship), we recognized the father's  fundamental right
  to the care and custody of his child as against a third party, including a 
  grandparent. S.B.L., 150 Vt. at 305, 553 A.2d  at 1085.  Therefore, because 
  the father was fit, his  rights were primary to the grandfather's and we
  affirmed the award of custody.

       The decision in S.B.L. reflected the recent developments in
  constitutional law defining the  rights of fathers of children born out of
  wedlock.  Id. at 303, 553 A.2d  at 1084.  Therefore, the  language in the
  S.B.L. holding requiring a "demonstrated commitment" to parenthood was the 
  bridge, under Lehr, to give the same rights to the unwed father in S.B.L.
  that mothers have long  enjoyed under the common law and the Constitution. 
  Id. at 305, 553 A.2d  at 1085.  In the case at  bar, however, no
  demonstrated commitment to the child is necessary for the mother to invoke
  her  constitutional right to raise her child.  As we noted in S.B.L., we
  must apply a "constitutional gloss"  to our interpretation of the
  guardianship statutes, 150 Vt. at 306, 553 A.2d  at 1086, and therefore a 
  third party guardian may not be appointed for the child under § 2645
  without proof of the requisite  grounds under the standard adopted in
  Rutherford v. Best, i.e., substantial proof of unfitness.

       Not surprisingly, the right of parents to custody of their own
  children versus grandparents to  whom children have been voluntarily and
  temporarily relinquished is a familiar scenario.  Several  states are in
  accord with our decision in S.B.L. (FN5)  In Williams, 869 P.2d  at 670, the
  Kansas  Supreme Court held that a mother who had not been found unfit was
  not required to show that a  change of 

 

  custody would materially promote the welfare of her minor child before she
  could regain custody.   The mother was entitled to the application of the
  parental preference doctrine, which incorporates the  unfitness standard,
  such that when the custody dispute is between a parent and a third person,
  the  parent prevails unless unfit.  Id. at 669.  The Williams decision was
  based on a previous decision of  the Kansas court in Sheppard, 630 P.2d 1121, which provided persuasive authority for S.B.L.,  holding
  unconstitutional a Kansas statute that permitted any person having actual
  physical custody of  a child with the consent of the legal custodian to be
  awarded custody, notwithstanding the parental  preference doctrine.  In
  striking down the statute, the Kansas court held:

    [T]hat a parent who is not found to be unfit, has a fundamental
    right  protected by the Due Process Clause of the United States 
    Constitution, to the care, custody and control of his or her
    child, and  that  the right of such a parent to custody of the
    child cannot be taken  away in favor of a third person, absent a
    finding of unfitness on the  part of the parent.

  Sheppard, 630 P.2d  at 1128.

       In a recent decision by the Florida Supreme Court, Richardson v.
  Richardson, 766 So. 2d 1036 (Fla. 2000), the court struck down a statute
  providing that where a child is residing with a  grandparent, a court may
  recognize grandparents as having the same standing as parents for 
  evaluating what custody arrangements are in the best interests of the
  child.  The court held the statute  was unconstitutional because it equated
  grandparents with parents based solely on a best interests  standard,
  thereby interfering with a natural parent's fundamental right to rear his
  or her child.  Id. at  1039-40.  See also In re Guardianship of Stewart,
  369 N.W.2d 820, 823 (Iowa 1985) (father who had  voluntarily relinquished
  custody of his daughter to her maternal grandparents custody retained a 
  presumptive right to custody that grandparents bore the burden of
  overcoming); Bezio v. 

 

  Patenaude, 410 N.E.2d 1207, 1214 (Mass. 1980) (whether parents make
  informal arrangements for  the custody of their children or use the formal
  guardianship process "[n]atural parents should be  denied custody only if
  they are unfit"); In re Ruth J. v. Beaudoin, 389 N.Y.S.2d 473 (N.Y. App.
  Div.  1976) (mother who had voluntarily relinquished her daughter to the
  care and custody of the State did  not have to prove she was then fit to
  take care of her child or to show that the return of the child from  foster
  care was in the child's best interests in order to obtain custody).  See
  Annotation, Award of  Custody of Child Where Contest is Between Child's
  Mother and Grandparent, 29 A.L.R. 3d 366  (Supp. 2001) (citing numerous
  cases for the rule that mother is entitled to custody of child absent 
  unfitness, abandonment, or extraordinary circumstances).

       Thus the best interests standard proposed by the majority vests rights
  in the guardians to the  guardianship where these rights simply do not
  exist.  See Barstad v. Frazier, 348 N.W.2d 479, 482  (Wis. 1984) (" 'the
  best interest of the child is not the proper standard in custody disputes
  between a  natural parent and a third party"). (FN6)  A guardianship is, by
  its nature, a temporary arrangement,  and the guardians are caring for the
  ward in place of the court.  The majority's standard would require  the
  court to find that there is something currently undesirable about the
  guardianship for the child,  not just that mother is a fit parent.  In
  fact, this imposes a more rigorous standard than that statutorily  required
  to terminate an involuntary guardianship created under § 2645(2). 
  According to 14 V.S.A.  § 3004, a parent who has previously been found
  unsuitable may regain custody of her child by 

 

  proving that the parent is "then a proper person to have the care and
  custody of the child."  This  standard properly focuses the court's inquiry
  on the parent, not on the merits of the guardianship,  which is irrelevant. 
  It should not be more difficult for a mother who has never been found to be
  unfit  to regain custody of her child than it is for a mother from whom a
  child has been taken away.

       In the case at bar, no amount of interpretation or inference about the
  Legislature's intent  permits us to override the mother's constitutional
  rights.  As a practical matter, however, mother has  to file a petition to
  terminate the guardianship to remove the court order that controls custody.  
  Because the guardians object to the petition, a hearing will be held by the
  probate court.  The  guardians are free to file their own petition alleging
  that the mother is unfit.  At the hearing on their  petition, the guardians
  should have the burden of proof to prove unfitness. 

       The majority addresses one other issue, and although it is unlikely to
  surface in this case in  view of the objection of the guardians, it is
  important to address the termination of a voluntary  guardianship when
  there is no objection or counter-petition filed.  If that were the case
  here, the  majority would still not return the child to the mother without
  a showing by her that resumption of  custody is in the best interests of
  the child.  In other words, the majority finds that the guardianship is 
  not freely revocable.  This view is irreconcilable with mother's
  constitutional rights, for the same  reasons as outlined above, because it
  treats mother as if she has been adjudged unsuitable when she  has not, and
  it is inconsistent with our precedent on parental preference.  

       The parental preference doctrine to which we have adhered in Vermont
  for years is based on  the notion that "[t]here is a presumption that the
  natural affection of a parent for a child will insure  the faithful
  execution of the trust which he holds as natural guardian."  Bioni v.
  Haselton, 99 Vt. 453,  458, 134 A. 606, 608 (1926).  More recently, in
  S.B.L., we recognized "a presumption that it is in the  best interests of
  the child to grant custody to a natural parent."  150 Vt. at 299, 553 A.2d 
  at 1062.  

 

  This presumption is rebuttable, however, by clear and convincing evidence
  that the natural parent is  unfit or that extraordinary circumstances
  justify denying the natural parent custody.  Paquette v.  Paquette, 146 Vt.
  83, 92, 499 A.2d 23, 30 (1985).  Proper application of the parental
  preference  doctrine also incorporates the unfitness standard necessary to
  implement the parent's constitutional  right to parent.  Therefore, if no
  one with standing objects or comes forward to show that the natural  parent
  is unfit,  the presumption is not rebutted, and the parent is entitled to
  the return of the child.   Under these circumstances, the guardianship is
  freely revocable.  This is hardly "tearing up" the court  order, since
  court action is required in any case.  

       The majority's reluctance to implement the parent's rights may stem
  from a fear that an unfit  parent who entered into a voluntary guardianship
  may seek to revoke that guardianship and the  guardian will not object,
  thereby endangering the child.  See n.4 supra, p.6.  I am not suggesting
  that  the court cannot hold a hearing on a petition to revoke and seek to
  understand the setting into which  the child will be placed, but the court
  is without power to deny the petition unless it finds by clear  and
  convincing evidence that the parent is unfit. 

       I am authorized to state that Justice Dooley joins this dissent.



                                       _______________________________________
                                       Associate Justice



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

FN1.  As there was no transcript of the hearing, we must rely on the only
  findings of the court  available for review.  The one sentence in the 1990
  order that mother is "unable to provide adequate  and proper care" is not
  sufficient to prove she is "unsuitable" according to the Rutherford
  factors.   The 1990 order contains no discussion of mother's living
  circumstances, her employment, her  interactions with her son, or anything
  else that would support the superior court's assertion that  mother is
  "unsuitable."  Without inquiry into "the character, conditions, habits, and
  surroundings" of  the parent, there can be no finding that mother is
  unsuitable.  Rutherford, 139 Vt. at 61, 421 A.2d  at  1306 (internal
  citation omitted).

FN2.  Indeed, all submissions by the parties indicate that no procedural
  safeguards were followed.  As we stated in Rutherford:

    [W]hen a probate proceeding is used as a vehicle to separate
    parent  and child, it loses its informality.  At that point,
    fundamental fairness  requires that an adequate record be prepared
    and that the probate  judge make findings, so that on appeal to
    this Court, we can  determine whether the record supports the
    findings and whether the  findings support the judgment.

  Id. at 63, 421 A.2d  at 1307. 

FN3.  Section 3003 of Title 14 provides: "When, by reason of the
  incompetency or unsuitableness  of a parent to have custody and education
  of a minor child, another person has been appointed  guardian of the minor,
  the parent may, at any time, file a motion for the removal of the
  guardian."  (Emphasis added).  The statute also states that, "[t]he court
  shall schedule a hearing" to determine if  the guardianship should be
  revoked.  14 V.S.A. § 3003.  At the hearing, the court may terminate the 
  guardianship if it believes that the parent is the "proper person to have
  the care and custody of the  child."  Id. § 3004.
  
FN4.  Because the majority's analysis obfuscates any functional distinction
  between  guardianships, the majority's holding that the lower court erred
  when it held the guardianship was  involuntary is meaningless.  If there is
  no significance to the difference in guardianships, there  should be no
  error attributed to the trial court.


FN5.  Although the majority claims not to overrule S.B.L., it adopts a best
  interests standard that  is inconsistent with that decision.  There was no
  determination below that the child was "better off"  with someone other
  than the parent. Therefore, mother retains her status as a fit parent until
  proven  otherwise.  
  
FN6.  Additionally, it is disingenuous for the majority to claim that mother
  does not bear the  burden of proof to meet this standard.  As a practical
  matter, an inquiry into the child's best interest  necessitates mother to
  present evidence of her own suitability as a parent, even though she was
  not  deemed unfit.  The best interest standard also forces mother to
  compare herself to the guardians (i.e.  home, income, marital status,
  etc.), and convince the court that she is the better parent than the 
  guardians.  I cannot see how an inquiry into the best interest of the child
  does not place the burden of  proof on mother.