In re D.H. & S.C., Juveniles
Appeal from Superior Court, Windham Unit, Family Division
Michael Rose, St. Albans, for Appellant Mother.
Matthew Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier, for Appellees Juveniles.
J. Donovan, Jr., Attorney General, Benjamin Battles,
Solicitor General, Montpelier, and Jody A. Racht, Assistant
Attorney General, Waterbury, for Appellee State.
Breiden, Vermont Legal Aid, Inc., Rutland, and Barbara Prine
and Rachel Seelig, Vermont Legal Aid, Inc., Burlington, for
Amicus Curiae Disability Law Project.
Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and
Teachout, Supr. J., Specially Assigned
Katherine A. Hayes, J.
1. EATON, J. Mother appeals the termination
of her parental rights to D.H., born in 2004, and S.C., born
in 2006. She argues that the family court improperly withheld
its discretion by refusing to grant a thirty-minute
continuance so that she could attend the termination hearing.
We agree and reverse.
2. In December 2013, the Department for Children and Families
(DCF) took D.H. and S.C. into emergency custody after mother
arrived at a DCF meeting visibly impaired, having driven to
the meeting with the children in the car. The purpose of the
meeting was to investigate allegations that mother's
husband had struck D.H. and broken his wrist while the family
lived in New Hampshire. The family had moved to Vermont
approximately one month earlier, but the children had not
been enrolled in school.
3. In April 2014, the parties stipulated that D.H. and S.C.
were children in need of care or supervision. In May 2014,
the court approved a disposition case plan with concurrent
goals of reunification with mother or adoption. Mother
engaged in substance abuse treatment and found stable housing
with husband, in accordance with the case plan. By October
2015, both children had been placed with mother and husband
at their residence. However, in December 2015, husband
allegedly restrained D.H. during an argument to the point
that D.H. had difficulty breathing. The day before, mother
was denied take-home methadone because she had a positive
drug screen. DCF removed both children from mother's
care. They have remained in foster care since December 2015.
D.H. is now thirteen years old and S.C. is eleven.
4. DCF filed a termination petition in May 2016. On May 23,
2016, the family court sent notice to mother by first-class
mail that a three-day termination hearing was set for October
24, 25, and 26, 2016. The notice stated that failure to
appear without good cause would cause the court to consider
the evidence of record and could result in an immediate order
of termination. A status conference was held on September 29,
2016, which mother attended. The court began the conference
by stating that "there is a termination of parental
rights hearing scheduled for October 24th through 26th."
5. When the termination hearing began at 9:12 a.m. on October
24, mother was not in the courtroom. Mother's attorney
did not know where mother was, but stated she was confident
mother knew about the hearing. DCF's attorney noted that
mother had been at prior hearings and had been told the date
of the termination hearing. The court agreed and stated that
"the notices are very, very clear that failure to appear
could result in a default-not a default, but in a judgment
being issued on documentation. Is that your request?"
DCF's attorney requested that the court decide the matter
based on written evidence. The court then admitted DCF's
exhibits without objection.
6. The court suggested that DCF submit proposed findings
based on the exhibits and that an order be issued based on
that documentation. DCF's attorney agreed. When asked by
the court to respond to the proposed procedure,
children's attorney stated that she had been
"struggling with this because [mother] has been at
everything." The court agreed that it was "not the
most straightforward case, " but stated that
"[t]his kind of seems like maybe what has happened is
that mom has given up." Children's attorney noted
that mother and her husband had separated and that mother had
lost her housing and was living with family members.
7. The court then granted a fifteen-minute recess during
which mother's attorney unsuccessfully attempted to
contact mother by phone. Following the recess, children's
attorney requested that the court take testimony from a DCF
caseworker to update the exhibits, and then to decide the
petition based on the documentation. The court asked
mother's attorney if she objected, and mother's
attorney responded, "Well, I guess, I feel the need to
preserve the mother's rights here, and I just don't
think I'm willing to stipulate, but I understand where
we're at." The court proceeded to hear brief
testimony from the DCF caseworker. The caseworker stated that
mother had revoked her releases, so DCF was unable to learn
whether mother had been seeing her treatment ...