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In re D.H.

Supreme Court of Vermont

August 11, 2017

In re D.H. & S.C., Juveniles

         On 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.

          Thomas J. Donovan, Jr., Attorney General, Benjamin Battles, Solicitor General, Montpelier, and Jody A. Racht, Assistant Attorney General, Waterbury, for Appellee State.

          Nancy 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.[1] 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 ...

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