87 A.3d 508
Vt.2013Background
- Father’s parental rights to daughters A.W. and J.W. were terminated by the family court in August 2012; termination as to an older son, E.W., was denied. The court found father had made improvement but posed a substantial relapse/reoffense risk and the children needed timely permanency with their grandmother.
- Father appealed the termination; this Court affirmed the termination in April 2013.
- Two days before the appellate decision issued, father moved in family court to modify or set aside the termination based on changed circumstances and continued sobriety and improved visitation and bonding with the daughters.
- The family court denied the motion (and a subsequent motion to reconsider supported by affidavit) without a hearing, concluding it was not in the children’s best interests to disrupt their stable placement and that a substantial risk of relapse/incarceration remained.
- Statutory framework: 33 V.S.A. § 5113 permits setting aside or modifying juvenile orders (including Rule 60 relief) and authorizes modification for changed circumstances, but the juvenile code emphasizes timely permanency for children and imposes a clear-and-convincing standard for termination orders.
Issues
| Issue | Father's Argument | State/Respondent's Argument | Held |
|---|---|---|---|
| Whether a termination-of-parental-rights order may be modified under 33 V.S.A. § 5113(b) for changed circumstances | § 5113(b) allows modification of “an order”; father contends this includes termination orders so a parent showing changed circumstances may reopen termination | Allowing modification would defeat the statutory purpose of timely permanency; termination orders are unique, permanent, and require clear-and-convincing proof, so § 5113(b) does not reach them | Court held § 5113(b) does not permit modification of termination-of-parental-rights orders based on changed circumstances; father’s motion properly dismissed |
Key Cases Cited
- In re J.H., 470 A.2d 1182 (Vt. 1983) (court entertained Rule 60-type relief where termination may have been procured by fraud)
- In re T.E., 582 A.2d 160 (Vt. 1990) (discussed proof standard if changed circumstances shown, but did not decide modifiability of termination orders)
- In re C.P., 71 A.3d 1142 (Vt. 2012) (termination orders are permanent)
- Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt. 2006) (statutory interpretation principles and use of plain language)