164 A.3d 665
Vt.2017Background
- P.K., born 2012, adjudicated CHINS; in Jan 2015 DCF petitioned to terminate mother’s and father’s parental rights; father relinquished in July 2015.
- On Oct 9, 2015 mother voluntarily relinquished parental rights and executed a postadoption-contact agreement with the child’s paternal grandmother (the then-pre-adoptive parent); mother acknowledged termination was irrevocable even if adoption failed.
- Court entered a final order terminating mother’s rights and finding mother knowingly and voluntarily relinquished rights, that relinquishment was in child’s best interests, and that she would have no further legal right to contact with P.K.
- In Dec 2015 DCF removed P.K. from the grandmother’s home after safety concerns; the grandmother was no longer an adoptive candidate and the child was placed with a different pre-adoptive family.
- On Jan 22, 2016 mother moved under V.R.C.P. 60(b) to set aside the termination order (arguing mistake and injustice) and later sought relief under 33 V.S.A. § 5113(b) (changed circumstances) and § 5115 (protective order).
- The superior court denied relief: found no mistake under Rule 60(b)(1), Rule 60(b)(6) relief barred by finality and statutory language in § 5124, and § 5113(b) inapplicable to termination orders per In re A.W. & J.W.; mother appealed.
Issues
| Issue | Mother's Argument | State/DCF's Argument | Held |
|---|---|---|---|
| Whether Rule 60(b)(1) or (6) relief should set aside termination order | Mother: relief appropriate because original agreement assumed grandmother would adopt and allow contact; removal changed circumstances and justice requires reopening | State: mother knowingly waived rights; Rule 60(b) focuses on parent’s conduct not child’s best interest; finality important | Denied — no mistake under 60(b)(1); 60(b)(6) relief inappropriate given finality and statutory scheme |
| Whether § 5113(b) (modification for changed circumstances) permits reopening termination order | Mother: § 5113(b) allows modification based on changed circumstances (grandmother removed) to protect child’s best interest | State: Mother waived this below; and In re A.W. holds § 5113(b) does not apply to termination orders | Denied — § 5113(b) does not apply to termination orders; allowing it would defeat statutory permanency goals |
| Whether court may issue a protective order under § 5115 to preserve mother–child contact despite termination | Mother: protective order could safeguard ongoing relationship given changed circumstances and parties’ agreement that contact was in child’s best interest | State: Protective order would conflict with § 5124’s requirement that parents acknowledge finality of termination and would undermine termination finality | Denied — § 5115 not available here; approving postadoption contact is distinct from finding harm that justifies protective order |
| Whether the court has equitable power to remedy injustice despite statutory language | Mother: equitable powers and continuing duty to consider child’s best interests justify relief | State: Statutory scheme and need for finality limit equitable reopening of termination orders | Denied — statutory text and legislative purpose of timely permanency preclude equitable relief in these circumstances |
Key Cases Cited
- Richwagen v. Richwagen, 153 Vt. 1, 568 A.2d 419 (1989) (standard and discretion for Rule 60(b) relief; finality concerns)
- In re A.W. & J.W., 195 Vt. 226, 87 A.3d 508 (2013) (§ 5113(b) does not apply to termination-of-parental-rights orders; legislative goal of timely permanency)
- Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica, 178 Vt. 35, 869 A.2d 145 (2005) (harmonize conflicting statutes by giving effect to more specific and recent statute)