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In re M.T.

Supreme Court of Vermont

November 3, 2017

In re M.T., G.T., B.T. and N.T., Juveniles

         On Appeal from Superior Court, Windsor Unit, Family Division Thomas J. Devine, J.

          Michael Rose, St. Albans, for Appellant Mother.

          Allison N. Fulcher of Martin & Associates, Barre, for Appellant Father.

          Matthew Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Appellees.

          Jody A. Racht, Assistant Attorney General, Waterbury, for State.

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ.

          ROBINSON, JUDGE.

         ¶ 1. Mother and father both appeal the court's order denying their motions to reopen a termination decision. On appeal, parents argue that the court erred in denying parents assigned counsel to represent them in connection with their motions to reopen a termination order on the grounds that their relinquishments of parental rights were not voluntary and they were not competently represented by counsel. We reverse and remand.

         ¶ 2. On January 12, 2017, the court terminated the parental rights of mother and father based on parents' voluntarily relinquishments. On February 9, 2017, mother and father separately filed pro se motions seeking to reopen the termination decision, citing Vermont Rule of Civil Procedure 60(b). Mother alleged that she had been in a car accident the day before she relinquished, had a concussion, and was not in the "right state of mind." Father also cited the car accident as the reason for asking to reopen the termination decision and stated that he had not been represented by his attorney correctly.

         ¶ 3. The court held a hearing on the motion. At the hearing, parents appeared, but were seated without their court-assigned attorneys, who were present in the courtroom. The court inquired whether parents were "hoping to be represented by an attorney for this motion today." Mother indicated that she wanted a continuance to find a new lawyer. Father explained that parents had fired their lawyers for lying to them and asked for a continuance to find new counsel. When asked by the court whether they were intending to hire private counsel, father indicated that he was hoping to have assigned counsel. Counsel indicated that given parents' allegations they would seek to withdraw. The court granted the motions to withdraw.[1] In considering whether to assign counsel, the court ruled as follows:

If this were a case where the State was here for the first hearing, seeking to remove the children, our law is clear that there's an absolute right for parents to have counsel, because they have a fundamental-liberty interest in raising their children free from governmental interference. It's a due process right; it's under the Fourteenth Amendment.
But we're not at that stage of the case now. The parents have had counsel at every stage of the case, leading up until the voluntary relinquishment proceedings, which were concluded in January, and we're really here on a fairly extraordinary motion, the motion from the parents to reopen what the Court considers to be a final judgment.
I am not aware of any statute or rule guaranteeing parents a right to counsel at state expense at that phase of the case. It's not to say you parents don't want to have counsel or you shouldn't have counsel, but I think you're going to have to acquire your own attorney out of your own pocket. The Court doesn't see that there's any clear authority to assign counsel for you at this late stage of the case.

         ¶ 4. The court gave parents fifteen days to find private counsel. No attorney entered an appearance for parents, and the matter was set for a hearing on June 12, 2017. Just before the hearing was set to begin, father called the court and explained that due to car trouble, parents would not be able to attend in person. Parents asked to appear by telephone. The State objected, asserting that parents were seen in their car earlier in the day. The court denied the motion to appear by telephone. The court explained that the motion to set aside the termination decision depended on an evaluation of credibility, which would be difficult to judge over the telephone, and ...


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