In re M.T., G.T., B.T. and N.T., Juveniles
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
Matthew Valerio, Defender General, and Joshua O'Hara,
Appellate Defender, Montpelier, for Appellees.
A. Racht, Assistant Attorney General, Waterbury, for State.
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ.
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. 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
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 ...