In re S.W., L.F., T.B., K.F. & K.F., Juveniles (2007-345)
2008 VT 38
[Filed 14-Mar-2008]
|
ENTRY ORDER |
|
2008 VT 38 |
|
|
|
} } |
APPEALED FROM: |
|
|
|
} |
|
|
|
} |
|
|
|
} |
|
|
|
} |
|
|
|
} |
|
|
} } |
236-10-04 Rdjv |
|
|
|
|
|
|
|
|
Trial Judge: Nancy Corsones |
In the above-entitled cause, the Clerk will enter:
¶ 1. Mother appeals the family court’s order terminating her parental rights with respect to her five children. Father appeals the same order with respect to his child with mother, S.W. Upon review of the record, we conclude that the evidence supports the family court’s findings, which, in turn, support the court’s conclusions and termination order. Accordingly, we affirm.
¶ 2.
Mother was the primary care giver for the children, who were born
between May 1994 and September 2000. Mother has a history of physical and
mental health problems, and has spent considerable time hospitalized or
incarcerated. Before moving to
¶ 3.
The children were adjudicated CHINS in early 2005 based on mother’s admissions
of neglect. The case plan goal at the time was to return the children to
mother. Father had not been conclusively identified as the father of one
of the children until the fall of 2006, and was never considered a placement
option because of his lengthy and repeated incarceration. The family
court issued a disposition order in April 2005 continuing custody with DCF,
adopting the goal of reunification with mother, and ordering DCF to make an
active effort to coordinate with
¶ 4. In the late fall of 2005, DCF changed its case plan goal to adoption and filed a petition to terminate parental rights with respect to all five children. The termination hearing was held over seven days between March and June 2007. Mother attended all but the last day of the hearing. Following the hearing, the family court concluded by clear and convincing evidence that there had been a substantial change of circumstances and that the children’s best interests dictated that mother’s and father’s parental rights be terminated. Both mother and father appeal that order. Mother argues that: (1) DCF failed to make reasonable efforts to comply with the family court’s disposition order requiring the Department to look into the possibility of placing the children in Massachusetts; (2) the family court’s denial of her second counsel’s repeated attempts to withdraw deprived her of effective assistance of counsel; and (3) the court failed to give her direct notice of the last day of the termination hearing. For his part, father argues that the court’s conclusion that he would not be able to provide parental care within a reasonable period of time was not supported by essential findings. We reject each of these arguments, which we address in turn.
¶ 5.
Mother first argues that DCF failed to use reasonable efforts to comply
with the family court’s disposition order requiring the Department to actively
seek placement of the children in
¶ 6.
Following the termination proceedings in which a different judge
presided, the family court considered whether DCF had made reasonable efforts
to comply with the disposition order. The court found that DCF followed
through “completely” with respect to that order by pursuing both foster and
kinship placements in
¶ 7.
Next, mother argues that she was entitled to, but denied, effective
assistance of counsel when the family court refused to allow her second
attorney to withdraw. Because mother has failed: (1) to make any showing
that her counsel was ineffective or that she was prejudiced by any
ineffectiveness on his part, or (2) to demonstrate that the family court abused
its discretion by denying her second attorney’s motion to withdraw, we need not
determine whether, or under what circumstances, a party may claim ineffective
assistance of counsel in a termination proceeding. See In re A.D.T.,
174
¶ 8. Approximately four months after DCF filed its termination petition, the family court allowed mother’s first counsel to withdraw from the case. Two months later, her second counsel filed a motion to withdraw, citing a lack of communication. The court denied the motion, finding that the problem appeared to be mother’s unavailability, which could continue irrespective of whether it assigned new counsel. The attorney continued to represent mother at hearings, but told the court that he was not getting clear instructions from his client. Several months later, following completion of the first three days of the termination hearing, mother’s attorney again moved to withdraw, stating that he had not communicated productively with mother and that there was a breakdown in client trust. The attorney indicated that he was unsure whether mother wanted him to withdraw, but that he wanted to withdraw because he did not think that he should have to deal with the animosity that mother had directed toward him at times. In response, mother stated that she just needed to sit down with her attorney and be clear about how they want to proceed to get her kids back. After listening to mother and her attorney, the court denied the motion. The court acknowledged that this is a difficult and emotional case, and that the attorney-client relationship had gone through some difficult patches because of mother’s emotional duress. Nevertheless, the court concluded that this was not a case in which the client had consistently berated the attorney to the point where he could not fulfill his duty to advocate zealously on her behalf.
¶ 9.
On appeal, mother fails to demonstrate, or even argue, that the court
abused its discretion in so ruling. See State v. Stanley, 2007 VT
64, ¶ 12, __ Vt. __, 933 A.2d 184 (noting that a decision whether to grant a
motion to substitute counsel is left to the trial court’s sound discretion); State
v. Ahern, 137 Vt. 253, 262-63, 403 A.2d 696, 703 (1979) (noting that an
indigent defendant has no right to counsel of his choice, and that the trial
court has discretion to substitute new counsel upon consideration of the
relevant factors). Moreover, other than citing the family court’s denial
of her attorney’s motion to withdraw, mother makes no showing either that her
counsel was ineffective or that any ineffectiveness on his part was prejudicial
in that it affected the outcome of the proceeding. Cf. In re M.B.,
162
¶ 10. Mother’s final
argument is that In re M.T., 2006 VT 114, 180 Vt. 643, 912 A.2d 456
(mem.), mandates reversal because the family court failed to notify her
directly of the last day of the termination hearing, which she did not
attend. We find no error. In M.T., 2006 VT 114, ¶ 12,
although DCF had sent the mother letters notifying her of a termination hearing
and the court had directly notified the mother’s attorney of the hearing, we
reversed and remanded the termination decision, holding that the family court
was required “to provide direct notice of a pending termination hearing to the
parents of children who are the subject of the petition, in addition to the
parents’ attorneys.” We refused to presume (1) that the mother would
necessarily recognize the full import of the proceeding without the court
itself directly sending her notice, or (2) that notice from the attorney with
whom she was feuding would sufficiently convey the gravity of the
situation.
¶ 11. In this case,
after receiving notice directly from the court, mother attended the first six
days of the termination hearing. She did not attend the last day of the
hearing, which had been continued, but the court directly notified her and her
attorney of that hearing date. When mother failed to appear on the final
day of the hearing, the family court called as a witness the court clerk, who
testified that that she had sent two notices of the hearing date to mother at
mother’s last known address, and that neither letter had been returned as
undeliverable. The clerk testified that she had attempted to call mother,
but that the phone had been temporarily disconnected, so she sent a letter by
overnight mail informing mother of the hearing and providing her with
information concerning arrangements that had been made for mother’s
transportation to
¶ 12. On appeal, mother argues because there was no proof that she actually received direct notice from the court of the last day of the termination hearing, the court’s termination decision must be reversed. We disagree. The evidence supported the court’s findings that it had sent direct notice of the hearing to mother at her last known address and that the notice had not been returned as undeliverable. Our holding in M.T. requires nothing more.
¶ 13. For his part, father argues that because the family court did not make findings on DCF’s failure to explore his recommended kinship placement with his sister, and erroneously found that his sister declined to assume care over S.W., its termination decision with respect to him cannot stand. According to father, DCF’s inaction impaired his ability to provide S.W. with proper care through his sister or mother. We find no merit to this argument. The issues in this termination proceeding were whether there had been a substantial change of circumstances and, if so, whether the best interests of the children warranted termination of parental rights. With respect to father, the court noted that since S.W. had come into state custody, father had been arrested, convicted, and incarcerated for felony drug distribution—his twentieth arrest in the previous fifteen years. The court also found that father had not seen S.W. for a few years before she was placed in state custody, and that his visits with her since then had been brief. Noting that father had spent seven of the previous ten years in jail, the court concluded that he had not played a constructive role in his daughter’s life. The record supports these unchallenged findings and conclusions. In considering DCF’s termination petition with respect to father, the court was not required to make findings on the potential parental fitness of his sister or mother. In short, father’s derivative-fitness argument is unavailing.
Affirmed.
|
|
BY THE COURT: |
|
|
|
|
|
|
|
|
|
|
|
Paul L. Reiber, Chief Justice |
|
|
|
|
|
|
|
|
John A. Dooley, Associate Justice |
|
|
|
|
|
|
|
|
Denise R. Johnson, Associate Justice |
|
|
|
|
|
|
|
|
Marilyn S. Skoglund, Associate Justice |
|
|
|
|
|
|
|
|
Brian L. Burgess, Associate Justice |
|
|
|