In re R.T.

In re R.T., Juvenile (C.T., Father* & R.T., Mother*)

SUPREME COURT DOCKET NO. 2019-417

Supreme Court of Vermont

APRIL TERM, 2020

May 1, 2020

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

APPEALED FROM:

Superior Court, Chittenden Unit, Family Division

DOCKET NO. 106-3-18 Cnjv

Trial Judge: David R. Fenster

In the above-entitled cause, the Clerk will enter:

Mother and father appeal the court's decision terminating their parental rights at initial disposition to R.T., born in March 2018. On appeal, parents argue that the court committed plain error in accepting mother's stipulation to the merits and that parents were prejudiced by the lack of a case plan. We affirm.

R.T. was placed in the custody of the Department for Children and Families (DCF) on the day she was born based on risk of harm. The State filed a petition alleging that R.T. was a child in need of care or supervision (CHINS). Parents stipulated to the merits of the petition, including that parents' rights to three older children were previously terminated, father was a registered sex offender for a 2008 offense against a thirteen-year-old girl, and both parents required parent education to safely parent R.T. when she was born.

In January 2019, the State filed a petition seeking to terminate parents' rights at the initial disposition. Following a hearing, the court found as follows. Parents required education to provide safe parenting for R.T. To address this need, mother and father began participating in Easter Seals Family Time coaching in May 2018.

Mother was engaged with significant services to enable her to care for herself but did not consistently engage and was unable to make significant progress. Mother also did not progress regarding her ability to read R.T.'s cues. Mother demonstrated an inability to understand her relationship with R.T. and believed she had no problem providing basic care to R.T. Mother struggled to provide safe care for R.T. Mother was unable to feed R.T. safely, could not change R.T. without allowing feces within R.T.'s reach, and could not put R.T. consistently into a car seat. Mother became dysregulated, emotional, and appeared threatening at times. Mother was unable to deal with R.T.'s temper tantrums.

Father has no concerns about mother caring for R.T. alone over a weekend, and has confidence in mother's parenting abilities that is inconsistent with the evidence. Because father worked seven days a week and family time coaching sometimes conflicted with his work, his attendance at family time coaching was inconsistent. When he did participate, his interactions with R.T. were not age appropriate. Like mother, he struggled to interpret R.T.'s cues when she needed a diaper change. At times, including at a case plan review and at shared family time, he also escalated in front of R.T., standing up, raising his voice, pounding the table, and pacing around the room. He did not progress through the course of this case in managing his anger.

DCF placed R.T. with a foster mother who was willing to adopt. The foster mother was able to accurately read R.T.'s cues. R.T. has a strong bond with her extended foster family. R.T. is an independent and caring child. She has good verbal skills. She exhibited dysregulation on days when she visited her parents, her sleep was disturbed and at times she became inconsolable, anxious, and uncomfortable.

The court evaluated the statutory best-interests factors and found that termination was in R.T.'s best interests. The court found that neither parent would be able to assume parental duties within a reasonable time given R.T.'s young age, her time in custody, and parent's lack of progress. The court further found that R.T.'s relationship with her parents was problematic and they do not play a constructive role in R.T.'s life. R.T. was well adjusted to her foster mother's home and community, and she was strongly bonded with her foster mother and foster family.

On appeal, parents argue that the court committed plain error in accepting mother's stipulation to the merits of the CHINS. Parents argument stems from the fact that mother was determined to be incompetent during the pendency of the proceeding and assigned a guardian ad litem (GAL). Vermont Rule of Family Court Proceedings 6(d)(3) contains the following requirements for individuals who have a GAL:

(3) Waivers of Constitutional and Other Important Rights. When a ward or a guardian ad litem wishes to waive a constitutional right of the ward, enter an admission to the merits of a proceeding, or waive patient's privilege under V.R.E. 503, the court shall not accept the proposed waiver or admission unless the court determines, after opportunity to be heard, each of the following:

(A) that there is a factual and legal basis for the waiver or admission;

(B) that the attorney has investigated the relevant facts and law, consulted with the client and guardian ad litem, and the guardian ad litem has consulted with the ward;

(C) that the waiver or admission is in the best interest of the ward; and

(D) that the waiver or admission is being entered into knowingly and voluntarily by the ward and also by the guardian ad litem, except as set forth in (4) below.

Because mother did not object to the merits stipulation in the trial court, on appeal she contends that the court committed plain error in accepting her admission to the merits by not fully complying with the requirements of Rule 6(d)(3). Specifically, mother argues that the court did not inquire fully as to whether the admission was made knowingly and voluntarily by the GAL, as required by Rule 6(d)(3)(D), or whether mother's attorney had investigated the facts and law as required by Rule 6(d)(3)(B).

We conclude that there is no basis for reversal. In the civil context, the plain-error doctrine is reserved for the "exceptional case[ ]" where the error implicates fundamental rights. In re D.C., 157 Vt. 659, 650 (1991) (mem.); see also Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, ¶ 40, 193 Vt. 490. Here, mother's fundamental rights were not violated. The court engaged in a full colloquy regarding her consent to the merits stipulation. At the hearing, the court indicated that it wanted to review the stipulation carefully with both parents to make sure everyone understood it and that it was voluntary. The court questioned mother at...