In re M.T., G.T., B.T. and N.T., Juveniles
In re M.T., G.T., B.T. and N.T., Juveniles
Opinion
*755 ¶ 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 *756 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 further relied on the State's assertion that parents had been seen in a working car that morning. Given parents' failure to appear, the court dismissed the Rule 60(b) motion.
¶ 5. On July 12, 2017, parents filed pro se motions to reconsider. Each attached an affidavit asserting that they were unable to attend the hearing because of car trouble. The court denied those motions as untimely filed. Parents appealed.
¶ 6. On appeal, parents argue that the court committed reversible error in denying them assigned counsel to represent them on their motions to reopen. Parents claim they were prejudiced by the error because they were unable to navigate the motion process. The juveniles, joined by the State, agree that it was error to deny counsel to parents, but assert that parents were not prejudiced by the lack of counsel because the dismissal resulted from parents' failure to appear at the evidentiary hearing, not their failure to have counsel. We conclude that the trial court erred in declining to appoint counsel to represent parents in connection with their Rule 60(b) motion, and that parents suffered prejudice as a result. 2
¶ 7. Parents in abuse and neglect proceedings have a statutory right to counsel in Vermont. Although there is not "an absolute constitutional right to counsel for indigent parents in termination proceedings, [the U.S. Supreme Court] has acknowledged
*757
that a parent's right to the custody, companionship, and care of his or her children is an important interest warranting due process protection."
In re S.C.
,
¶ 8. Under the plain language of the statute, parents in this case were entitled to appointment of counsel for purposes of their Rule 60(b) motion. See
In re A.W.
,
¶ 9. We reject the State's and juveniles' argument that parents were not prejudiced by the denial of counsel and therefore the error was harmless.
3
"We have employed the harmless error standard in termination cases, and, under that standard, an error warrants reversal only if a substantial right of the party is affected."
In re R.W.
,
¶ 10. In assessing the prejudice to parents, we are cognizant of two particular goals of the juvenile judicial proceedings act. The statute provides that "safety and timely permanency for children are the paramount concerns" and that the procedures must be "executed and enforced" in a manner that ensures the parties have "a fair hearing, and that their constitutional and other legal rights are recognized and enforced." 33 V.S.A. § 5101(a)(4), (6). The balancing of these interests-timely resolution and fair process-makes this a difficult case.
¶ 11. Ultimately, we are persuaded in this case that denial of counsel to parents affected their ability to participate fully in the adjudication of their Rule 60(b) motion and that reversal is therefore warranted. The presence of counsel is essential to "protecting the parent-child relationship and ensuring a fair and accurate decision that termination of parental rights is in the child's best interests."
*758
In re S.C.
,
Reversed and remanded for the court to appoint assigned counsel to mother and father and to schedule a hearing on their Rule 60(b) motion .
Although parents purported to "fire" their attorneys, appointed counsel could withdraw only with permission of the court. See V.R.F.P. 15(f)(3) (providing that under certain circumstances counsel may withdraw only on motion, after notice and hearing, "for good cause shown"); see also
In re S.C.
,
Parents arguments on appeal attack the court's decision denying their July 12 Rule 60(b) motions for relief from judgment. In fact, parents did not appeal the denial of the Rule 60(b) motion; rather, parents filed a subsequent motion to reopen thirty days after the denial of the Rule 60(b) motion. The trial court dismissed this motion as untimely. See V.R.C.P. 59(e) (setting ten-day deadline on filing motion to alter or amend). Because the second motion to reopen was untimely, it could not toll the appeal period. V.R.A.P. 4(b) (providing that timely post-judgment motions toll appeal period); see
In re Beach Props., Inc.
,
Both the State and the juveniles agree that the trial court erred in declining to appoint counsel to represent parents in connection with their Rule 60 motion.
In their reply brief, parents cite the U.S. Supreme Court's opinion in
Strickland v. Washington
for the proposition that "[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice."
Strickland v. Washington
,
Reference
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- In RE M.T., G.T., B.T. and N.T., Juveniles
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