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In re A.W.

Supreme Court of Vermont

November 1, 2013

In re A.W. and J.W., Juveniles

On Appeal from Superior Court, Lamoille Unit, Family Division, A. Gregory Rainville, J.

Michael Rose, St. Albans, for Appellant.

William H. Sorrell, Attorney General, Montpelier, and Joseph L. Winn, Assistant Attorney, General, Waterbury, for Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Burgess, J. (Ret.),


¶1. Father appeals the family court’s denial of his motion to modify a final order terminating his parental rights to his children, A.W. and J.W., born in November 2000 and October 2006, respectively. On appeal, father argues that there are changed circumstances sufficient to modify or set aside the termination decision and that the court’s basis for denial in this case lacked evidentiary support. We affirm.

¶2. In August 2012, the family court issued an order terminating father’s parental rights to his daughters, A.W. and J.W., and denying termination as to father’s older child, a son, E.W. The court acknowledged that father had made improvements by engaging in substance-abuse treatment and counseling. However, the court noted his extensive criminal history and past history of failed supervision and that his inability to maintain compliance with the requirements of release on furlough created a substantial risk he would reoffend and again be unable to care for the children. [1] Moreover, the court found that father’s relationship with his daughters was “not entirely positive” and needed substantial work for which there was insufficient time because of the girls’ need for permanency in their lives. The court found that the girls had an excellent connection with and adjustment to their current home with their grandmother. The court concluded that father would not be able to parent the children within a reasonable period of time. [2] Father appealed the termination of his parental rights to his daughters, and this Court affirmed. In re A.W. & J.W., No. 2012-321, 2013 WL 2631291 (Vt. April 10, 2013) (3-Justice unpub. mem.).

¶3. Two days before this Court’s decision issued, father filed a motion to modify or set aside the termination order. Father argued that one year had elapsed since evidence was taken at the termination hearing and that his positive “turnaround” had continued since that time. Father requested a modification of the termination decision to allow him to “strengthen the bond with his two youngest children.” The family court denied the motion based on this Court’s affirmance of the termination decision. Father then filed a motion to reconsider with an accompanying affidavit. Father averred that he was maintaining his sobriety and employment, and had established a strong and positive relationship with A.W. and J.W. through visits two or three times a week. On May 2, 2013, the court denied the motion without a hearing, stating that it was “not in the children’s best interest, after living a stable and nurtured relationship for two and a half years with their grandmother, to be returned to the custody of their father.” The court noted father’s significant progress, but explained that there was still a substantial risk that father would relapse or reoffend, resulting in incarceration. Father appeals.

¶4. A provision in the juvenile statutes, 33 V.S.A. § 5113, delineates when an existing order in a child-neglect proceeding may be modified. Section 5113(a) states that an order of the court may be set aside in accordance with Vermont Rule of Civil Procedure 60. In addition, “the court may amend, modify, set aside, or vacate an order on the grounds that a change in circumstances requires such action to serve the best interests of the child.” Id. § 5113(b). The statute specifies that “[a] ny order under this section shall be made after notice and hearing.” Id. § 5113(c).

¶5. Father first argues that, just like other juvenile orders, a termination-of-parental-rights order is subject to modification based on changed circumstances if it is in the best interests of the children. [3] This is a question of statutory interpretation, which we review de novo. In interpreting the statute, we apply familiar guidelines of statutory construction aimed at implementing the Legislature’s intent. Miller-Jenkins v. Miller-Jenkins, 2006 VT 78, ¶34, 180 Vt. 441, 912 A.2d 951. We apply the plain language of the statute when the meaning is unambiguous. Id. “Where there is uncertainty about legislative intent, we must consider the entire statute, including its subject matter, effects and consequences, as well as the reason for and spirit of the law.” Id. (quotation omitted).

¶6. Father relies on two older cases to argue that the family court has the ability to modify a termination order. His reliance is misplaced. [4] In the first, In re J.H., 144 Vt. 1, 5, 470 A.2d 1182, 1184 (1983), the children, J.H. and R.H., were found to be CHINS, taken into state custody, and placed in foster care. The parents’ rights were eventually terminated based on their stipulations. Over a year later, the parents filed a motion for relief seeking to set aside the termination decisions and a motion to modify based on changed circumstances. The juvenile court dismissed the motions, and the parents appealed. The parents alleged that they were pressured into relinquishing their rights and they did not voluntarily or willingly consent to termination.

¶7. The statutory provision in effect at the time provided: “An order of the court may be set aside by a subsequent order of this court... when it appears that the initial order was obtained by fraud or mistake sufficient therefor in a civil action, or that the court lacked jurisdiction over a necessary party or of the subject matter, or that newly discovered evidence so requires.” In re J.H., 144 Vt. at 4, 470 A.2d at 1184 (quoting 33 V.S.A. § 659(a), subsequently renumbered at 33 V.S.A. § 5532, 1989, No. 148 (Adj. Sess.)). On appeal, this Court addressed solely the motion for relief, holding that the disposition on the claim of fraud made it unnecessary to consider the petition to modify. We held that the juvenile court had jurisdiction to entertain parents’ motion pursuant to § 659(a) as the statute applied to “all orders, including those that terminate residual parental rights.” Id. at 5, 470 A.2d at 1184. This Court emphasized that it was important for jurisdiction to exist because “[c]ourts must be ready and able to afford relief against fraud whenever it appears.” Id. As it applied to the facts of the case, we explained that “[i]f the court orders terminating residual parental rights were obtained by fraud, as appellants have alleged, it would be unconscionable to immunize those orders from attack on the ground that the court lacks jurisdiction.” Id. We reversed and remanded the termination decision for consideration of the parties’ claim of fraud. Id. at 5, 470 A.2d at 1185.

¶8. There are obvious distinctions between In re J.H. and the case before us. The statute governing In re J.H. allowed the court to set aside an order if that order was obtained by fraud or mistake, identifying it as a Rule 60(b) motion. See 33 V.S.A. § 5113(a) (“An order of the court may be set aside in accordance with Rule 60 of the Vermont Rules of Civil Procedure.”). In In re J.H., providing relief against fraud was a compelling policy reason that drove the decision. Here, father is seeking to modify a prior termination decision not because of fraud, but based on changed circumstances, under § 5113(b). Therefore, the compelling policy reason that was present in In re J.H. does not apply here.

¶9. Father also cites to In re T.E., 155 Vt. 172, 582 A.2d 160 (1990), to support his argument that a motion to modify based on changed circumstances may be used to amend a termination order. Again, as in In re J.H., the governing statute was 33 V.S.A. § 659(a). In In re T.E., the mother filed a timely motion in the lower court to amend the findings following the termination decision. [5] A ruling was substantially delayed on her motion for more than three years, and, finally, at the court’s invitation, the mother filed another motion to amend based on changed circumstances, which the court considered following a hearing. 155 Vt. ...

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