In re P.K., Juvenile
In re P.K., Juvenile
Opinion
¶ 1. Mother appeals the superior court's decision denying her motion to set aside a previous order terminating her parental rights to her daughter, P.K. Mother voluntarily relinquished her parental rights in the same proceeding in which she entered into a postadoption-contact agreement with P.K.'s paternal grandmother, with whom the child had been placed by the Department for Children and Families (DCF). After DCF removed P.K. from the paternal grandmother's home and placed her with another preadoptive foster family, mother moved to set aside the termination order. We affirm the superior court's denial of mother's motion.
¶ 2. P.K was born in April 2012 and adjudicated a child in need of care or supervision (CHINS) in November 2013. In January 2015, DCF filed petitions to terminate both father's and mother's parental rights. Father voluntarily relinquished his parental rights in July 2015.
¶ 3. At a hearing on October 9, 2015, mother voluntarily relinquished her parental rights after entering into a postadoption-contact agreement pursuant to 33 V.S.A. § 5124. At the outset of the hearing, the termination agreement, the accompanying affidavit in support of the agreement, a waiver of notices, and the postadoption-contact agreement were introduced and admitted as exhibits. Mother acknowledged that she was knowingly and voluntarily relinquishing her parental rights and that there was "no going back." Mother's attorney explained that mother was agreeing to relinquish her parental rights in part because of the postadoption-contact agreement and in part because a contested termination hearing might have resulted in findings that could have prejudiced *667 her with respect to the child she was expecting.
¶ 4. The postadoption-contact agreement was signed by mother, the paternal grandmother, who was the intended adoptive parent, the DCF caseworker, P.K.'s guardian ad litem (GAL), and P.K.'s attorney. It provided that mother and P.K. would have supervised seven-hour visits once a month, as well as visits on Thanksgiving, Christmas, and P.K.'s birthday, as long as mother did not appear for the visits under the influence. Among other things, the agreement stated, in compliance with § 5124, that: (1) it would become enforceable only after mother voluntarily relinquished her parental rights, the court approved the agreement upon finding that it was in the child's best interests, and the child was legally adopted in Vermont by the adoptive parent who had signed the agreement; and (2) "the termination of parental rights cannot be undone and remains permanent, even if the intended adoption does not happen, the adoptive parent(s) do not follow the terms of the agreement, or the adoption is later dissolved."
¶ 5. Following the hearing, the superior court issued a final order terminating mother's parental rights. The order stated that: (1) mother had given considerable thought to her decision to voluntarily relinquish her parental rights to P.K. and had done so because she believed it was in P.K.'s best interest to do so; (2) she understood that, pursuant to her agreement to relinquish her parental rights and the court's order to that effect, she would "have no further legal right to visitation and contact with [P.K.]"; (3) she further understood that the court's order "terminates all her rights of any kind to [P.K.]"; (4) she indicated that she had consulted with her attorney and was satisfied with his legal representation and advice; (5) the termination documents she submitted to the court were executed "without duress or coercion, and while [she was] competent and not under the influence of any judgment affecting substances"; (6) all parties, including P.K.'s GAL, agreed that it was in P.K.'s best interest that she be freed for adoption and that mother's residual parental rights be terminated; and (7) all parties agreed that it was in P.K.'s best interest that custody be transferred to DCF, without limitation as to adoption.
¶ 6. On December 17, 2015, P.K. was removed from her paternal grandmother's residence on an emergency basis after a neighbor reported that the then three-year-old child had been locked outside the grandmother's residence, without being appropriately dressed for the weather. The neighbor reported that the child had been told by her parents, who were "taking their medicine," to remain outside until she was called back in on the cell phone they had given her. Based on a follow-up investigation, DCF removed P.K. from the grandmother's home and discontinued the grandmother as an adoption candidate.
¶ 7. On January 22, 2016, mother filed a motion, pursuant to Vermont Rule of Civil Procedure 60(b), to set aside the October 9, 2015 termination order in the best interest of P.K. See 33 V.S.A. § 5113(a) ("An order of the Court may be set aside in accordance with Rule 60 of the Vermont Rules of Civil Procedure."). She initially argued that the termination order had been based on the parties' mistaken belief that the paternal grandmother would be the adoptive parent and would allow visitation with mother. She later supplemented that argument by asserting that the termination order must be set aside in the interests of justice and to allow for a new postadoption-contact agreement to become effective.
¶ 8. At an April 28, 2016 hearing on the motion, mother's attorney asked the superior *668 court to look beyond the four corners of the agreements that mother had entered into and exercise its equitable powers to correct an injustice. DCF's attorney stated that it was "the Department's position that P.K. should continue to have a relationship with her mother and her grandmother," but that mother's visits with P.K. while the child was living with her new preadoptive family had been "more detrimental to P.K. than helpful." P.K.'s GAL and attorney agreed with DCF's attorney that it would not be in P.K.'s best interest for DCF to move P.K. and tell her that she would never see her mother and grandmother again. Mother's attorney argued that the court had continuing and equitable jurisdiction to do what was necessary to assure that P.K. continued to have a relationship with her mother, which everyone agreed was in her best interest. Mother's attorney stated that "the preference would be for the Court to analyze the motion on 60(b)(1) and 60(b)(6)."
¶ 9. On June 9, 2016, the superior court denied the motion, ruling that no mistake existed to permit relief under Rule 60(b)(1) and that the relief mother sought could not be justified under Rule 60(b)(6), the catchall provision. The court acknowledged that a new postadoption-contact agreement in this case appeared to be foreclosed by the statutory requirement that such agreements precede a termination order. See 33 V.S.A. § 5124(a)(2). Nevertheless, the court concluded that the remedy mother sought was precluded by the unequivocal language set forth in § 5124(b)(2)(B), which provides that, in approving a postadoption-contact agreement, the court must determine that each parent has acknowledged "that the termination of parental rights is irrevocable, even if the intended adoption is not finalized, the adoptive parents do not abide by the postadoption contact agreement, or the adoption is later dissolved." The court further concluded that, given this statutory language, the Legislature's concern with finality, and the length of time reopening this case would entail, relief under Rule 60(b)(6) was not available. While suggesting that there could be cases in which DCF's post-termination actions implicated the implied covenant of good faith and fair dealing, which might call for court action, the court found no such circumstances here.
¶ 10. On appeal, mother argues that the superior court erred by not employing available legal remedies to safeguard her ongoing relationship with P.K., which the court necessarily found to be in P.K.'s best interest in approving the postadoption-contact agreement. Mother acknowledges that relief under Rule 60(b) is unavailable because the focus of such a motion is on her rather than the best interests of the child, which is the focus of CHINS proceedings. She also acknowledges that the parties focused almost exclusively on Rule 60(b) at the hearing on her motion to vacate the termination order, but she asserts that the superior court had an independent duty to consider the child's best interests.
¶ 11. Mother contends that relief is available under 33 V.S.A. § 5113(b), which generally permits orders to be modified based on changed circumstances, due to the changed circumstances resulting from the paternal grandmother's removal as a preadoptive parent. She seeks to distinguish the facts of this case from those in
In re A.W.
, where we held "that § 5113(b) does not apply to an order terminating parental rights."
¶ 12. Even though mother has taken a different tack on appeal, we first consider her argument for relief under Rule 60(b), which was the basis for her motion in the superior court. Mother sought relief under Rule 60(b)(1), which allows for relief due to "mistake, inadvertence, surprise, or excusable neglect," or, alternatively, under Rule 60(b)(6), the general catchall provision aimed at preventing hardship or injustice. A motion for relief from judgment pursuant to Rule 60(b)"is addressed to the discretion of the trial court and is not subject to appellate review unless it clearly and affirmatively appears from the record that such discretion was withheld or otherwise abused."
Richwagen v. Richwagen
,
¶ 13. As the superior court found, this is not a situation where mother entered into the postadoption-contact agreement under any mistaken belief. At the time she signed the agreement, the paternal grandmother was the preadoptive parent, and mother confirmed her understanding that the termination of her parental rights could not be undone even if the anticipated adoption did not occur. Nor can mother prevail under Rule 60(b)(6). Because of the concern for "certainty and finality of judgments," Rule 60(b)(6) does not provide relief "from tactical decisions which in retrospect may seem ill advised."
Richwagen
,
¶ 14. On appeal, instead of seeking relief pursuant to Rule 60(b), as she did before the superior court, mother seeks relief under 33 V.S.A. § 5113(b), claiming changed circumstances. The State contends that mother waived this argument by not raising it below. See
In re White
,
¶ 15. While we agree with the State that mother did not pursue an argument grounded in § 5113(b) because of her apparent assumption that that avenue of relief was foreclosed by this Court's decision in
A.W.
, we reaffirm our holding "that § 5113(b) does not apply to an order terminating parental rights."
In re A.W.
,
¶ 16. We find these arguments unavailing. To be sure, the changed circumstances asserted in this case are different from those asserted in
A.W.
But the principal grounds for our holding in
A.W.
apply to all termination orders. We relied upon the explicit "legislative purpose to provide timely permanency to children," as well as the uniqueness of termination orders, which are inherently permanent in nature and must be supported by clear and convincing evidence.
¶ 17. This reasoning is generally applicable to all termination orders, regardless of the basis for the alleged changed circumstances. Indeed, as noted, the Legislature explicitly requires courts, before approving postadoption-contact agreements, to find "that the child's best interests will be served by postadoption communication or contact with either or both parents," 33 V.S.A. § 5124(b)(1)(A) ; nevertheless, in the same statute, the Legislature also requires courts to obtain "a written acknowledgement by each parent that the termination of parental rights is irrevocable, even if the intended adoption is not finalized, the adoptive parents do not abide by the postadoption contact agreement, or the adoption is later dissolved,"
¶ 18. Nor is any relief available pursuant to 33 V.S.A. § 5115(a), which generally permits the superior court to issue protective orders upon a showing that "the conduct of a person ... is or may be detrimental or harmful to a child." Approving a postadoption-contact agreement based, in part, on a finding that the agreement will serve the child's best interests is not the same as finding that the child will be harmed if the agreement is not fulfilled.
¶ 19. Moreover, permitting a protective order in this situation would be directly inconsistent with the Legislature's more specific and recent recognition in § 5124 that, although a postadoption-contact agreement cannot be approved unless it serves the child's best interests, any parent who is a party to such an agreement must acknowledge that the termination of that parent's parental rights is final even if the adoption or expected contact does not occur. See
Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica
,
¶ 20. The superior court noted that, on the one hand, § 5124 requires parents to acknowledge the finality of termination orders even if a postadoption-contact agreement is not finalized, but on the other hand, provides that agreements may be entered into if a termination order has not yet issued. Compare 33 V.S.A. § 5124(a)(2) with
Affirmed .
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