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In re M.P.

Supreme Court of Vermont

September 17, 2019

In re M.P., Juvenile

          On Appeal from Superior Court, Windham Unit, Family Division Katherine A. Hayes, J.

          Matthew Valerio, Defender General, Montpelier, and Sarah R. Star, Attorney & Counselor at Law, P.C., Middlebury, for Appellant Father.

          Adele V. Pastor, Barnard, for Appellant Mother.

          Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jody A. Racht, Assistant Attorney General, Waterbury, for Appellee Department for Children and Families.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Dooley, J. (Ret.), Specially Assigned

          REIBER, C.J.

         ¶ 1. Mother and father appeal termination of their parental rights to their daughter M.P., born in October 2015. On appeal, father[1] argues that (1) Vermont lacked subject matter jurisdiction to adjudicate M.P. as a child in need of care or supervision (CHINS) and to terminate his parental rights under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); (2) the family court erred in finding that his progress had stagnated and that termination was in M.P.'s best interests; and (3) the evidence does not support the court's finding that the Department for Children and Families (DCF) made reasonable efforts to finalize the permanency plan. Mother joins father's arguments and argues that the CHINS order is invalid because mother did not join the stipulation on which the order was based. We affirm termination of mother's rights and reverse and remand the order terminating father's parental rights.

         ¶ 2. In sum, we reject parents' jurisdictional challenges to the CHINS merits order and reverse termination of father's parental rights. We conclude that husband had authority as the children's custodian and presumed legal parent to enter the stipulation upon which the CHINS decision was based. Further, the family court had temporary emergency jurisdiction over the CHINS petition under the UCCJEA and that jurisdiction became permanent when no case concerning M.P. was filed or commenced in another state. We affirm termination of mother's parental rights. We conclude that the court erred in finding that father's progress had stagnated. Nonetheless, we hold that there was a change of circumstances warranting modification of the case plan in this case given the identification of father, who had previously been involved as M.P.'s caretaker, as M.P.'s legal parent. We reverse termination of father's rights and remand.

         ¶ 3. The court found the following facts. When M.P. was born, mother was married to husband. Husband was present at M.P.'s birth, and his name was placed on M.P.'s birth certificate. Mother and husband also have two older children together. At the time of M.P.'s birth, the family lived in Alabama. In the spring of 2016, the family moved to Vermont. Mother was subsequently arrested on an Alabama warrant and extradited to Alabama. M.P. and her brothers remained in Vermont in husband's care. In August 2016, husband requested assistance in caring for the children, and M.P. and her brothers were placed in DCF custody. The State filed a petition alleging M.P. and her brothers were CHINS.

         ¶ 4. In September 2016, M.P. was placed in a foster home where she has since remained. At the time, M.P. was just under one year old and very small for her age. She was unable to sit up and could not grasp objects or feed herself. Her foster mother worked with her, a doctor, and an interventionist, and by the time of the termination hearing, at three years old, she was on track developmentally and doing very well. She has a close, loving relationship with her foster parents and foster brother and sees her two half-brothers regularly. Her foster parents would like to adopt her.

         ¶ 5. In November 2016, husband as custodial parent, the children, the State, and DCF entered into a merits agreement, and the court found based on the stipulated facts that M.P. and her brothers were CHINS. The court issued a disposition order in January 2017 covering all three children, which had concurrent case plan goals of reunification with one parent "by August 2017" or adoption. Mother's plan of services required her to, among other things, participate in a substance-abuse evaluation, attend treatment if recommended, maintain consistent communication with the children, refrain from criminal activity, secure safe and stable housing, sign releases, obtain employment, and participate in a mental-health assessment. The disposition case plan stated that mother had named as M.P.'s father her paramour, W.H., with whom she had been living. In March 2017, at a post-disposition review hearing, the court issued an order for genetic testing to determine if husband was M.P.'s biological parent. Based on the results of the genetic testing and the absence of objection from husband, in June 2017, the court issued a proposed parentage order naming W.H. as M.P.'s legal parent. W.H., referred to throughout this decision as father, was entered as a party in the case and assigned an attorney.

         ¶ 6. Husband subsequently moved to vacate the parentage order. In October 2017, the court denied the motion, concluding that husband knew there was a possibility he was not M.P.'s biological parent and that during a period after M.P.'s birth, mother and father lived together and jointly cared for M.P. This order was not appealed.

         ¶ 7. With parentage for M.P. established, DCF filed a new case plan with a plan of services for father but the court did not issue a new disposition order adopting the case plan at that time. Under that plan of services, father was to, among other things, demonstrate safe and appropriate parenting, attend court hearings and appointments, remain in contact with DCF, secure safe and stable housing and childcare, and maintain employment or means of financial support. A permanency hearing was held in December 2017. The court found that the permanency plan from July 2017 was outdated and rescheduled the hearing. DCF filed a new plan in February 2018, which had a goal of termination of parental rights. The State filed petitions to terminate parents' rights at the same time.

         ¶ 8. Mother cared for M.P. during the first several months of her life. She is an Alabama native and spent some time living with husband and some time living with father and his family. When M.P. was between two and eight months old, mother lived with father full-time while husband was incarcerated. Father did not know mother was taking M.P. to Vermont until after the move and he did not learn that M.P. was in DCF custody until about a week after the emergency care order issued. Father attempted to communicate with DCF, but DCF would not provide him with information because he was not recognized as M.P.'s legal parent at the time and was not a party to the proceeding. Mother was incarcerated when M.P. came into DCF custody. She was reincarcerated at least twice after being released. Mother was not able to visit M.P. from the time M.P. was placed in DCF custody in August 2016 until the post-disposition hearing in March 2017. Although mother was released from custody for part of that time, she had a medical condition that limited her ability to travel to Vermont. Mother was again arrested in March 2018 in Alabama and remained incarcerated at the time the termination hearing began in August 2018. Mother provided a urine sample for drug analysis in December 2018, which was positive for amphetamine, methamphetamine, benzodiazepines, and opiates. Mother claimed these were prescribed substances but did not provide a physician's name or releases to support that assertion.

         ¶ 9. Father lives in Alabama. He was no longer in a relationship with mother at the time of the termination hearing. He receives Social Security Disability payments and does side jobs. He attended parenting classes and does not have significant mental-health issues or a history of substance abuse. DCF submitted an Interstate Compact on Placement of Children (ICPC) request to Alabama asking them to assess the appropriateness of father's home to place M.P. This referral was not complete by the time of the termination hearing. Father's sister had contact with M.P. during her early life. She offered herself and her family as guardians for M.P. She took classes to qualify as a foster placement and in June 2018 was certified by Alabama as an approved foster parent. In May 2018, DCF informed her that it had determined it was in M.P.'s interest to remain with her foster parents and not move to Alabama. In July 2018, DCF received notice that Alabama had approved an ICPC request for aunt's home.

         ¶ 10. Mother and father came to Vermont for visits with M.P. during the summer of 2017. Father's sister provided transportation and was present for visits in August and September 2017. Overall the visits went well, but mother and father tended to crowd M.P. and M.P. was more engaged with father than mother.

         ¶ 11. Based on these findings, the court determined that there had been a change of circumstances due to parents' stagnation. Mother had failed to meet several key requirements, including avoiding criminal activity and incarceration. Mother's charges had connections to illegal drug use, and she had not addressed her substance-abuse problem. Because of her incarceration, mother was unable to maintain contact with M.P., develop a bond with her, or demonstrate a consistent, safe, and appropriate living environment. Father's interaction with M.P. was not regular or consistent enough to enable M.P. to form an attachment with father or for him to develop a parental relationship with his daughter. The court further found that termination of mother's and father's rights was in M.P.'s best interests. M.P. has a strong and loving bond with her foster parents and siblings but little relationship with either biological parent. Mother and father were not able to parent M.P. within a reasonable period of time as measured from M.P.'s perspective. They did not play a significant role in her life, and she was not bonded to them. The court denied aunt's requests to have M.P. placed with her or to be M.P.'s guardian, finding that aunt did not have a significant relationship with M.P. Mother and father separately appeal the termination order.

         I. Stipulation and CHINS Order

         ¶ 12. On appeal, parents both challenge the validity of the CHINS merits decision. Father argues that the family court committed plain error in proceeding to disposition and then termination because mother's husband, although the putative father and custodial parent at the time, lacked authority to stipulate that M.P. was CHINS. Father contends that this error deprived the family court of jurisdiction over M.P., negating the succeeding disposition and termination decisions. Mother argues that the CHINS order was invalid because it was based on a stipulation that she did not join and was not entered by a custodial parent. Because these arguments are being raised for the first time on appeal, they were not properly preserved for our review. ...


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