817 A.2d 20 | Vt. | 2002
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
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.
A.D.T. was bom 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 bom. 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
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 AD.T. on June 14,2001.
SRS’s petition to terminate father’s rights in AD.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 AD.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 dear and convincing evidence established that fath er 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.
We first address mother’s claim that she is entitled to appeal the family court’s June 14,2001 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 AD.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
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
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-
Second, the court’s order reflects that it considered all relevant factors in deciding that termination was in B.D. and AJD.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 AJD.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 AflXT.’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
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 AD.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.
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.
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.
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 AD.T.