Justia Family Law Opinion SummariesArticles Posted in Vermont Supreme Court
In re H.T. & M.L.
Parents appealed the termination of their rights in M.L., born in 2014, and H.T., born in 2015, following a long-delayed initial disposition hearing. They argued the trial court: (1) committed plain error in accepting their stipulation that the children were in need of care or supervision (CHINS); (2) violated their due process rights by delays in the proceedings; and (3) erred in concluding that they would not be able to parent the children within a reasonable time. While the delay in the initial disposition hearing meant the court did not have to find stagnation in order to terminate the parents’ residual parental rights, the court made findings that supported termination. Contrary to parents’ assertion, the Vermont Supreme Court found the trial court did not “ignore the injustices that were apparent to service providers, expert witnesses and the GALs.” Instead, the Supreme Court determined the trial court applied the law and evaluated, based on the evidence, whether terminating parents’ rights would be in the children’s best interests. “While parents disagree with the court’s conclusion, they fail to show error.” View "In re H.T. & M.L." on Justia Law
In re C.L.S.
Parents appeal the termination of their parental rights to son C.L.S. C.L.S. was born in February 2018. During mother’s last trimester of pregnancy, hospital staff reported to the Department for Children and Families (DCF) that mother had repeatedly tested positive for illicit unprescribed substances. She missed numerous prenatal and medication-assisted-treatment appointments during her pregnancy. She declined inpatient treatment or a referral to a substance-abuse clinic. Parents were unmarried but lived together prior to C.L.S.’s birth. At birth, C.L.S. weighed less than five pounds, had an underdeveloped esophagus, and was in withdrawal from having illegal drugs in his system. He initially required a feeding tube. Mother tested positive for numerous unprescribed illegal drugs. DCF took C.L.S into custody on an emergency basis on the day he was born and filed a petition alleging that C.L.S. was a child in need of care or supervision (CHINS). A temporary care hearing began the following day. The parents denied that C.L.S. was CHINS, sought a conditional order giving custody to father, and requested a contested temporary care hearing. The court continued custody with DCF but permitted parents to have unsupervised contact with C.L.S. while he remained in the hospital. C.L.S. was subsequently discharged to a foster home and father filed a motion requesting parent-child contact and unsupervised visitation. In September 2018, after a contested hearing, the court issued a disposition order continuing DCF custody and adopted a case plan calling for concurrent goals of reunification with either parent or adoption. Neither party appealed the disposition order. In January 2019, the State filed petitions to terminate mother’s and father’s parental rights. On appeal, neither parent challenged the court’s findings or conclusions in the termination order. Rather, they asserted the court committed various errors at the temporary care hearings that required reversal of the merits determination and subsequent disposition orders. Finding no abuse of discretion, the Vermont Supreme Court affirmed termination. View "In re C.L.S." on Justia Law
In re M.E.
Juvenile M.E. appealed the family division’s dismissal of the State’s petition to declare her a child in need of care or supervision (CHINS). In May 2019, the Department for Children and Families (DCF) filed a petition alleging that M.E. was without proper parental care. The CHINS petition was based on mother’s admitted use of heroin on one occasion and allegations that M.E. had been exposed to drug use and paraphernalia while in the care of her parents. The court issued an emergency care order transferring custody to DCF. After a temporary care hearing, custody was continued with DCF. A merits hearing was held; subsequently the court concluded the State failed to establish the merits and dismissed the petition. “[A]ny time the State seeks to interfere with the rights of parents on the generalized assumption that the children are in need of care and supervision, it must first produce sufficient evidence to demonstrate that the statutory directives allowing such intervention are fully satisfied.” The fact that there was evidence in the record to contradict the court’s findings was insufficient for the Vermont Supreme Court to reverse the trial court’s conclusion. Accordingly, the Court affirmed dismissal of the CHINS petition. View "In re M.E." on Justia Law
McCool v. Macura
Defendant appealed a final relief-from-abuse (RFA) order issued by the superior court family division. The parties had an intimate relationship and began living together in 2011 in a house originally owned by plaintiff’s family but later purchased by the parties. The relationship ended in December 2017. In June 2018, plaintiff filed a motion for relief from abuse, asking the Orange County family division to order defendant to stay away from her and the parties’ home. The Orange County family division concluded defendant had engaged in abuse by stalking, and that there was danger of further abuse. A temporary order was extended for six months; at the end, the RFA was not extended. The court determined at that point, the parties were engaged primarily in a property dispute. On December 19, 2018, the day after the Orange County family division denied plaintiff’s motion to extend the previous RFA order, plaintiff filed a new request for an RFA order in the Washington County family division. In her affidavit, she alleged that a few hours after the previous day’s hearing, defendant entered her residence without her consent to retrieve his belongings. Plaintiff further alleged that defendant got inside the house through forced entry and disabled the outside security cameras. She stated that defendant had a history of restraining her and that the previous RFA order had expired only hours before he entered her residence. The Washington County family division granted a temporary RFA order and scheduled a hearing. Following the hearing, the court issued a final RFA order based on the court’s determination that defendant had abused plaintiff by placing her in fear of imminent serious physical harm. Defendant appealed that order, arguing that: (1) the record did not support the court’s determination that plaintiff was placed in reasonable fear of imminent serious harm; (2) the court failed to make findings concerning any danger of future abuse; and (3) the court abused its discretion by not allowing him to cross-examine plaintiff, unfairly limiting defendant’s direct testimony, and not admitting relevant video evidence of defendant entering plaintiff’s residence. The Vermont Supreme Court concluded the record did not support the court’s determination that defendant abused plaintiff by placing her in fear of imminent serious physical harm, and vacated the RFA order. View "McCool v. Macura" on Justia Law
In re A.M.
Mother appealed a family division disposition order transferring custody of her six-year-old daughter A.M. to father, who lived in Colorado. Specifically, mother argued the court erred in directing mother to pay for 75% of the costs of transporting the child back and forth to Vermont for contact with mother. Specifically, she argued the court lacked authority in this CHINS proceeding to make an order allocating travel costs, particularly since neither party requested such an order, there was no warning to the parties, and no evidence was taken regarding their relative financial conditions. The State did not disagree and joined in mother’s arguments on this issue. Because the Vermont Supreme Court found no statutory authority for the court to make a financial award of this type in a CHINS proceeding, it reversed the family court’s final disposition order insofar as it purported to allocate 75% of the costs of transporting A.M. for visits to mother. The matter was remanded for that court to issue new disposition and parental rights and responsibilities orders without that provision. View "In re A.M." on Justia Law
In re M.P.
When M.P. was born, mother was married to husband. At the time of M.P.’s birth, the family lived in Alabama. In the spring of 2016, the family moved to Vermont. Mother was subsequently arrested on an Alabama warrant and extradited to Alabama. M.P. and her brothers remained in Vermont in husband’s care. In August 2016, husband requested assistance in caring for the children, and M.P. and her brothers were placed in DCF custody. The State filed a petition alleging M.P. and her brothers were CHINS. Mother and father appealed the eventual termination of their parental rights to M.P. On appeal, father argued: (1) Vermont lacked subject matter jurisdiction to adjudicate M.P. as a child in need of care or supervision (CHINS) and to terminate his parental rights under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); (2) the family court erred in finding that his progress had stagnated and that termination was in M.P.’s best interests; and (3) the evidence did not support the court’s finding that the Department for Children and Families (DCF) made reasonable efforts to finalize the permanency plan. Mother joins father’s arguments and argues that the CHINS order is invalid because mother did not join the stipulation on which the order was based. The Vermont Supreme Court rejected the parents’ jurisdictional challenges to the CHINS merits order and reversed termination of father’s parental rights. The Court concluded husband had authority as the children’s custodian and presumed legal parent to enter the stipulation upon which the CHINS decision was based. Further, the family court had temporary emergency jurisdiction over the CHINS petition under the UCCJEA and that jurisdiction became permanent when no case concerning M.P. was filed or commenced in another state. The Court affirmed termination of mother’s parental rights, but that the family court erred in finding that father’s progress had stagnated. Nonetheless, the Supreme Court held there was a change of circumstances warranting modification of the case plan in this case given the identification of father, who had previously been involved as M.P.’s caretaker, as M.P.’s legal parent. View "In re M.P." on Justia Law
In re G.B., Juvenile
Juvenile G.B., born in June 2017, appealed a trial court’s order denying his petition to terminate mother’s parental rights and directing the Department for Children and Families (DCF) to prepare a new disposition plan for mother. The Vermont Supreme Court dismissed the appeal for lack of a final judgment. In October 2017, the court held a merits hearing in G.B.’s case. The court found that G.B. was a child in need of care or supervision (CHINS) based on parents’ mental-health issues, substance abuse, failure to consistently engage in parent-child contact, and father’s criminal history. Father did not appear at the hearing; mother was briefly present. The court considered the best-interests factors as to each parent, then granted the petition to terminate father’s rights, concluding that he had not developed a relationship with G.B. and would not be able to assume parental duties within a reasonable period of time. As to mother, the court acknowledged that mother’s relapse resulted in her not being able to play a constructive role in G.B.’s life for seventeen months. The court concluded, however, that mother was ready, willing, and able to resume a constructive role in G.B.’s life and that she “should be given the opportunity over the next six months to reunify with G.B.” Therefore, the court denied the petition to terminate mother’s rights. The court explained that the case was “still at disposition” and directed DCF to prepare a new disposition plan in light of the court’s decision. G.B. appealed the denial to terminate mother’s rights. To the Supreme Court, G.B. argued the trial court failed to view the question of whether mother would be able to parent within a reasonable period of time from the perspective of the juvenile. The Supreme Court determined the order G.B. sought to appeal in this case—the denial of the petition to terminate mother’s rights—was not final because it was neither a final judgment nor a disposition order. The order denying termination of mother’s rights did not finally resolve the status of mother’s parental rights and therefore was not a final judgment. View "In re G.B., Juvenile" on Justia Law
Kitoko v. Salomao
Mother and her four minor children were undocumented immigrants from Angola living in Vermont. Mother is married to the children’s father. At one time, father indicated that he would join the family in North America but he had not. Mother alleged that father had not contacted or supported the family since 2013. She also testified that there was no place for the children in Angola. In February 2018, mother sought relief under 15 V.S.A. 291, seeking award of sole legal and physical parental-rights-and-responsibilities (PRR) based on father’s abandonment of the family. Mother also asked the court to make special findings that would allow the children to apply for “special immigrant juvenile” (SIJ) status with the United States Citizenship and Immigration Services (USCIS). Father was served by publication in Angola. The trial court concluded that it was in the children’s best interests that mother have sole PRR, both legal and physical. It did not order any parent-child contact with father. The court denied mother’s request for SIJ findings, concluding it lacked authority to make SIJ findings because they were not necessary to its parental-rights-and-responsibilities (PRR) decision. The Vermont Supreme Court concluded that given the primacy of a child’s best interests in cases like this and the court’s broad discretion in determining those interests, the trial court did have the authority to make such findings. “It should make such findings when it is in a child’s best interests to do so and where such findings are supported by the evidence.” The Supreme Court therefore reversed and remanded the trial court’s decision to allow it to engage in this analysis. Because one of the juveniles would turn eighteen on July 13, 2019, the Supreme Court issued the mandate immediately and directed the court to issue its findings forthwith. View "Kitoko v. Salomao" on Justia Law
Posted in: Civil Procedure, Family Law, Government & Administrative Law, Immigration Law, Vermont Supreme Court
Weitz v. Weitz
Husband Theodore Weitz appealed an order denying his motion to reopen the case after wife Sheryl's notice of voluntary dismissal, filed pursuant to Vermont Rule of Civil Procedure 41(a)(1)(i). On appeal, he argued: (1) Rule 41(a)(1)(i) “is in direct conflict” with the Vermont Rules for Family Proceedings and was therefore inapplicable to the Family Division; (2) Rule 41(a)(1)(i) was not intended to apply in cases where significant resources have been expended; and (3) that it was inequitable to apply Rule 41(a)(1)(i) in this case due to alleged bad faith and bad acts by wife. Finding no reversible error, the Vermont Supreme Court affirmed. View "Weitz v. Weitz" on Justia Law
Johnston v. Johnston
The parties divorced in November 2004. As part of the divorce, the court ordered wife to transfer funds from her retirement account to husband. In 2006, the court approved a proposed Qualified Domestic Relations Order (QDRO) to effectuate the transfer of those funds. The order was never “qualified,” however, because there was no money in the retirement account that wife identified. The court approved another proposed QDRO in February 2007 specifying a different retirement account identified by wife. In August 2017, husband filed a motion to enforce, asserting that the owed funds were never transferred to him and that there were no funds in the second retirement account that wife identified. The court denied husband’s motion to enforce, finding it barred by the eight-year statute of limitations for actions on judgments. The Vermont Supreme Court did not consider husband’s attempt to effectuate a transfer of these retirement funds by QDRO to be an action on a judgment, and therefore reversed and remanded. View "Johnston v. Johnston" on Justia Law