268 A.3d 49
Vt.2021Background
- S.O., born July 2018, was taken into DCF custody shortly after birth and has lived with the same foster parents essentially since birth.
- Grandparents filed a petition in probate (Oct 15, 2020) for a minor custodial guardianship under 14 V.S.A. ch. 111 while a CHINS/TPR matter was pending in family division.
- Parents’ residual parental rights were terminated (Oct 21, 2020); the TPR orders became final (no appeals) Nov 20, 2020, and DCF received all parental rights without limitation to adoption.
- The family division conferred with probate, declined to consolidate the guardianship petition with the juvenile proceeding, and transferred the petition back to probate after disposition.
- DCF moved to dismiss the probate guardianship petition, arguing both consensual and nonconsensual guardianship statutes do not apply once parental rights are terminated; the probate court granted dismissal without an evidentiary hearing.
- Grandparents appealed, claiming statutory entitlement to a guardianship and that dismissal without a merits hearing violated due process; the Supreme Court affirmed dismissal.
Issues
| Issue | Grandparents' Argument | DCF's Argument | Held |
|---|---|---|---|
| Whether probate could grant a custodial guardianship after parents’ residual parental rights were terminated | A guardianship remains appropriate because S.O. remains a child in need of guardianship (abused/neglected and a ward of the State) | Once parental rights are terminated and transferred to DCF, parents cannot consent or oppose; statutes for consensual and nonconsensual guardianship do not apply | The probate court lacked authority to grant either consensual or nonconsensual custodial guardianship after TPR and transfer of rights to DCF; dismissal affirmed |
| Availability of a consensual guardianship after TPR | Mother previously consented before TPR; that consent should survive | Consent must be by a custodial parent at commencement; following TPR parents cannot enter the written agreement required by statute | Consensual guardianship unavailable because parents were not custodial and cannot enter the statutorily required agreement |
| Availability of a nonconsensual guardianship after TPR | A nonconsensual guardianship could be established because child was abused/neglected when taken into custody | Nonconsensual guardianship requires a parent to oppose (or seek termination) and a showing to overcome parents’ liberty interest; after TPR parents have no such interest or ability to oppose | Nonconsensual guardianship unavailable because parents no longer possess the liberty interest or ability to oppose; statutory framework contemplates parental rights remaining |
| Whether due process required an evidentiary hearing before dismissal | Mathews v. Eldridge requires a hearing to protect grandparents’ interest in child’s safety and placement; DCF failed to follow its policies | Facts relevant to dismissal were undisputed and the issue was purely legal; notice and opportunity to respond were provided; no relief was legally available even with evidence | No evidentiary hearing required; dismissal on legal grounds was proper because no statutory relief could be granted and grandparents had meaningful opportunity to be heard |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due process balancing test for procedural protections)
- In re C.B., 249 A.3d 1281 (Vt. 2020) (discusses transfer of guardianship petitions between family and probate divisions in CHINS context)
- In re A.M., 246 A.3d 419 (Vt. 2020) (addresses sequencing of termination-of-parental-rights and guardianship petitions and potential mootness)