On
Appeal from Superior Court, Caledonia Unit, Family Division
Robert R. Bent, J.
Michael Rose, St. Albans, for Appellant Mother.
William H. Sorrell, Attorney General, Montpelier, and Jared
C. Bianchi, Assistant Attorney General, Waterbury, for
Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
JJ.
REIBER, C.J.
¶
1. Mother appeals the superior court's decision denying
her motion to set aside a previous order terminating her
parental rights to her daughter, P.K. Mother voluntarily
relinquished her parental rights in the same proceeding in
which she entered into a postadoption-contact agreement with
P.K.'s paternal grandmother, with whom the child had been
placed by the Department for Children and Families (DCF).
After DCF removed P.K. from the paternal grandmother's
home and placed her with another pre-adoptive foster family,
mother moved to set aside the termination order. We affirm
the superior court's denial of mother's motion.
¶
2. P.K was born in April 2012 and adjudicated a child in need
of care or supervision (CHINS) in November 2013. In January
2015, DCF filed petitions to terminate both father's and
mother's parental rights. Father voluntarily relinquished
his parental rights in July 2015.
¶
3. At a hearing on October 9, 2015, mother voluntarily
relinquished her parental rights after entering into a
postadoption-contact agreement pursuant to 33 V.S.A. §
5124. At the outset of the hearing, the termination
agreement, the accompanying affidavit in support of the
agreement, a waiver of notices, and the postadoption-contact
agreement were introduced and admitted as exhibits. Mother
acknowledged that she was knowingly and voluntarily
relinquishing her parental rights and that there was "no
going back." Mother's attorney explained that mother
was agreeing to relinquish her parental rights in part
because of the postadoption-contact agreement and in part
because a contested termination hearing might have resulted
in findings that could have prejudiced her with respect to
the child she was expecting.
¶
4. The postadoption-contact agreement was signed by mother,
the paternal grandmother, who was the intended adoptive
parent, the DCF caseworker, P.K.'s guardian ad litem
(GAL), and P.K.'s attorney. It provided that mother and
P.K. would have supervised seven-hour visits once a month, as
well as visits on Thanksgiving, Christmas, and P.K.'s
birthday, as long as mother did not appear for the visits
under the influence. Among other things, the agreement
stated, in compliance with § 5124, that: (1) it would
become enforceable only after mother voluntarily relinquished
her parental rights, the court approved the agreement upon
finding that it was in the child's best interests, and
the child was legally adopted in Vermont by the adoptive
parent who had signed the agreement; and (2) "the
termination of parental rights cannot be undone and remains
permanent, even if the intended adoption does not happen, the
adoptive parent(s) do not follow the terms of the agreement,
or the adoption is later dissolved."
¶
5. Following the hearing, the superior court issued a final
order terminating mother's parental rights. The order
stated that: (1) mother had given considerable thought to her
decision to voluntarily relinquish her parental rights to
P.K. and had done so because she believed it was in
P.K.'s best interest to do so; (2) she understood that,
pursuant to her agreement to relinquish her parental rights
and the court's order to that effect, she would
"have no further legal right to visitation and contact
with [P.K.]"; (3) she further understood that the
court's order "terminates all her rights of any kind
to [P.K.]"; (4) she indicated that she had consulted
with her attorney and was satisfied with his legal
representation and advice; (5) the termination documents she
submitted to the court were executed "without duress or
coercion, and while [she was] competent and not under the
influence of any judgment affecting substances"; (6) all
parties, including P.K.'s GAL, agreed that it was in
P.K.'s best interest that she be freed for adoption and
that mother's residual parental rights be terminated; and
(7) all parties agreed that it was in P.K.'s best
interest that custody be transferred to DCF, without
limitation as to adoption.
¶
6. On December 17, 2015, P.K. was removed from her paternal
grandmother's residence on an emergency basis after a
neighbor reported that the then three-year-old child had been
locked outside the grandmother's residence, without being
appropriately dressed for the weather. The neighbor reported
that the child had been told by her parents, who were
"taking their medicine, " to remain outside until
she was called back in on the cell phone they had given her.
Based on a follow-up investigation, DCF removed P.K. from the
grandmother's home and discontinued the grandmother as an
adoption candidate.
¶
7. On January 22, 2016, mother filed a motion, pursuant to
Vermont Rule of Civil Procedure 60(b), to set aside the
October 9, 2015 termination order in the best interest of
P.K. 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."). She initially
argued that the termination order had been based on the
parties' mistaken belief that the paternal grandmother
would be the adoptive parent and would allow visitation with
mother. She later supplemented that argument by asserting
that the termination order must be set aside in the interests
of justice and to allow for a new postadoption-contact
agreement to become effective.
¶
8. At an April 28, 2016 hearing on the motion, mother's
attorney asked the superior court to look beyond the four
corners of the agreements that mother had entered into and
exercise its equitable powers to correct an injustice.
DCF's attorney stated that it was "the
Department's position that P.K. should continue to have a
relationship with her mother and her grandmother, " but
that mother's visits with P.K. while the child was living
with her new pre-adoptive family had been "more
detrimental to P.K. than helpful." P.K.'s GAL and
attorney agreed with DCF's attorney that it would not be
in P.K.'s best interest for DCF to move P.K. and tell her
that she would never see her mother and grandmother again.
Mother's attorney argued that the court had continuing
and equitable jurisdiction to do what was necessary to assure
that P.K. continued to have a relationship with her mother,
which everyone agreed was in her best interest. Mother's
attorney stated that "the preference would be for the
Court to analyze the motion on 60(b)(1) and 60(b)(6)."
¶
9. On June 9, 2016, the superior court denied the motion,
ruling that no mistake existed to permit relief under Rule
60(b)(1) and that the relief mother sought could not be
justified under Rule 60(b)(6), the catchall provision. The
court acknowledged that a new postadoption-contact agreement
in this case appeared to be foreclosed by the statutory
requirement that such agreements precede a termination order.
See 33 V.S.A. § 5124(a)(2). Nevertheless, the court
concluded that the remedy mother sought was precluded by the
unequivocal language set forth in § 5124(b)(2)(B), which
provides that, in approving a postadoption-contact agreement,
the court must determine that each parent has acknowledged
"that the termination of parental rights is irrevocable,
even if the intended adoption is not finalized, the adoptive
parents do not abide by the postadoption contact agreement,
or the adoption is later dissolved." The court further
concluded that, given this statutory language, the
Legislature's concern with finality, and the length of
time reopening this case would entail, ...