# In re R.W. and N.W. > Supreme Court of Vermont · November 18, 2011 · 191 Vt. 108 URL: https://www.frixlaw.com/law-library/cases/9522105 ## Case - **Full name:** In Re R.W. and N.W., Juveniles - **Court:** Supreme Court of Vermont - **Decided:** November 18, 2011 - **Citations:** 191 Vt. 108; 39 A.3d 682; 2011 VT 124; 2011 Vt. LEXIS 140; 2011 WL 5600636 - **Precedential status:** Published - **Opinion:** Concurrence by Dooley - **Judges:** Reiber, Dooley, Johnson, Skoglund, Burgess - **Cited by:** 66 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9522105 ## How later opinions describe it (automated extraction) - explaining “due process demands that [parent] be provided with an opportunity to be heard at the [termination] hearing” but parent’s “actual presence is not . . . required, and [their] participation may be satisfied through other means” - explaining that we apply harmless-error standard in termination cases whereunder “error warrants reversal only if a substantial right of the party is affected” (quotation omitted) - explaining that due process is satisfied by providing notice and opportunity to be heard but parent is not conferred right to be present or to confront witnesses - stating that Supreme Court applies harmless error analysis in juvenile cases, and will reverse judgment only where error has affected substantial rights of party - holding that in termination-of-parental-rights proceeding “an error warrants reversal only if a substantial right of the party is affected” (quotation omitted) ## Opinion text Dooley, J., ¶ 55. concurring. I concur in the majority’s resolution of mother’s appeal. As to father, I agree that the trial court erred in dismissing the termination petition for lack of jurisdiction and therefore concur that the case should be remanded for further proceedings. However, I am concerned with the procedures implemented in this case, which wholly deprived father of a *135 meaningful opportunity to participate in the case and may have undermined the best interests of the children. It appears from the record that neither the court nor the Department for Children and Families (DCF) made any effort to locate and notify father of the proceeding to adjudicate his girls as children in need of care or supervision (CHINS) until the eleventh hour when the termination petition was already pending. Once father was contacted, the court rejected his attempt to appear by telephone, again precluding father’s participation. While the factual scenario is new to this Court, the significant numbers of foreign-born minors in this country and foreign-born citizens in this state generally means that the international complications present in this case are not unique and will likely arise again. 9 Thus, I write separately to emphasize where this case has gone in the wrong direction and the steps that must be taken in child neglect proceedings to secure the rights of foreign minors and their noncustodial parents — including those who are foreign nationals. I also address questions that will likely again arise on remand regarding father’s participation in this case. ¶ 56. The most striking deficiency in this case is the total lack of notice to father of the neglect proceedings involving his children. 10 This is a classic case of notifying a parent of a juvenile proceeding for the sole purpose of terminating the parental rights of the parent. DCF obtained custody of the children based on an emergency detention order issued on June 9, 2006. Yet, the record reveals that the first time DCF attempted to contact father was in January 2010 to give him notice of DCF’s petition to terminate *136 parental rights. 11 At that point, the children had been in DCF custody for three and a half years. II57. Such a delay is contrary to Vermont law, which directs that parents, even noncustodial ones, be notified at the early stages of any child neglect proceeding. Under the statutes in effect at that time, a copy of the June 2006 detention order should have been delivered to father as the girls’ parent. 33 V.S.A. § 5513(b) (repealed 2009) 12 (directing that an order placing a child into custody should be delivered to “a parent ... if they can be found”). Furthermore, the court had an independent obligation to “make reasonably diligent efforts to locate noncustodial parents and notify them of hearings held pursuant to this chapter.” Id. § 5519a. The early notification requirement is echoed by the Uniform Child Custody Jurisdiction Act (UCCJA), which directs that a court must provide “reasonable notice and opportunity to be heard . . . to . . . any parent whose parental rights have not been previously terminated” before issuing a decree in “child neglect and dependency proceedings.” 15 V.S.A. §§ 1033, 1031(3). 13 For unexplained reasons, however, there was no attempt by the *137 court or DCF to locate or contact father prior to January 2010. As the majority decision notes, when DCF finally tried to give notice to father, its method was inadequate and ineffective. DCF conceded in the trial court that father finally received actual notice of the termination from the lawyer for DCF by electronic mail. ¶ 58. Equally disturbing is that no counsel has ever been assigned to father, neither in the trial court nor in this Court. Thus, we are issuing this very important decision based on an ex parte presentation by DCF. A needy parent in a termination proceeding is entitled to a public defender “when the court deems the interests of justice require representation.” 13 V.S.A. § 5232(3); see Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 27-32 (1981) (holding that constitutional right to counsel in parental termination proceedings determined on a case-by-case basis). Certainly, once DCF filed for termination and father had initiated contact via electronic mail with both the DCF caseworker and the DCF attorney, the court should have taken steps to determine if father could afford Vermont counsel and to assign an attorney to represent father’s interest, could he not afford one. This Court notified father of the appeal and his right to counsel by electronic mail and sent father an application for public defender services. Father has not, however, responded. In my judgment, resolving father’s right to representation has to be the first step on remand. ¶ 59. The three-and-a-half-year delay in notifying father has prejudiced him in several ways, some of which cannot be remedied by our remand. First, it obviously deprived father of an opportunity to participate personally or through an attorney from the beginning of the proceedings. Second, it precluded consideration of him, or possibly other Sri Lankan relatives he might have suggested, as an alternative placement for the children. Third, and most irreparably, father’s prolonged separation from his children makes reunification with him more unlikely given the increasing time it would take for him to develop a bond with them and the positive relationships the girls have developed with their foster families in the interim. See 33 V.S.A. § 5114(a) (listing best-interests factors to include child’s relationship with parents and foster parents, parent’s ability to resume parenting within reasonable period of time, and parent’s role in children’s lives). Because of father’s lack of notice, the circumstances of father’s relationship to his children are unknown. Thus, at this stage, it is impossible *138 to wholly determine the level of communication and interest father has displayed towards the children and to what extent his absence from their lives is attributable to his own inaction. See In re A.D.T., 174 Vt. 369, 377 , 817 A.2d 20, 26-27 (2002) (affirming termination of father’s parental rights where he had “completely refused to have any relationship with, or to take responsibility for, his child”); see also In re C.L., 2005 VT 34, ¶¶ 15-16 , 178 Vt. 558 , 878 A.2d 207 (mem.) (considering unwed father’s level of interest and extent of efforts to assert paternity in terminating father’s rights to child). Nonetheless, prompt notice to father would have allowed him to present his version of the facts and to have an opportunity to involve himself in the children’s lives. We can only speculate whether an appropriate option to meet the best interests of the children may have been to return them to Sri Lanka. ¶ 60. I am cognizant that DCF has asked us to take the unusual step of terminating father’s parental rights without a remand to the family division. It justifies this request because “Father’s connection to the children is purely biological; he has played no constructive role in their lives and there is no indication that he could or would, at any point in the future, assume a parental role with either of the children.” DCF takes this position after its lawyer received an email from father that explained his inability to obtain a visa to come to the United States and that asked: “Please . . . ask for a long date from the court to enable me to get a visa and claim my right to my two daughters. I need them and I love them. Please help me.” In fact, other than the email, there is no evidence in the record to show whether father could or would assume a parental role in the future precisely because DCF never investigated the issue and father had no opportunity to address it. ¶ 61. In addition to failing to notify father, neither DCF nor the court took measures to contact Sri Lanka regarding the children, who were — and continue to be — citizens of that country. As the majority notes, international law required that the Sri Lankan consulate be notified. See Vienna Convention on Consular Relations, art. 37, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (specifying that receiving state has a duty to notify consulate of foreign state “where the appointment of a guardian or trustee appears to be in the interests of a minor” who is a national of the foreign state). While this notice has now been supplied, pursuant to the treaty, notification should have been provided as soon as the children were taken into DCF custody. *139 ¶ 62. On a broad scale, notification is important for maintaining international comity. See People v. Madej, 739 N.E.2d 423, 431 (Ill. 2000) (McMorrow, J., concurring and dissenting) (emphasizing that “[i]t is in our own self-interest to uphold the principle of international comity” regarding consular notification under Article 36 of the Vienna Convention). This country’s compliance encourages other countries to provide the same service to American minors within their jurisdictions. “[W]e cannot expect that the citizens of this country, while abroad, will be afforded their rights under the Vienna Convention, or indeed, under any treaty, if we do not afford those same international rights to foreign nationals here in the United States.” Id. For example, if the situation were reversed and an American child was taken into custody by a Sri Lankan social services agency because her American parent was deemed unfit, certainly one would expect authorities there to contact the American consulate at the earliest possible time. ¶ 63. As it relates to this particular matter, notification is important because it would allow Sri Lanka to assist in locating other individuals who could act as guardians or custodians for the children, including father. See In re Adoption of C.M.B.R., 332 S.W.3d 793, 842 (Mo. 2011) (Wolff, J., concurring and dissenting) (‘We should view the consulates of foreign governments as sources of help in these situations.”); In re Angelica L., 767 N.W.2d 74, 97 (Neb. 2009) (Gerrard, J., concurring) (“This [termination] case, for instance, might have proceeded far differently had Guatemalan consular officials been appropriately and actively engaged in the process from the beginning.”); see generally C. Delphin, Comment, Protecting the Interests of Foreign-National Minors in the United States Through Consular Notification, 45 New Eng. L. Rev. 941 , 953-54 (2011). Such notification is in keeping with the overall philosophy of communication encompassed in both the UCCJA and UCCJEA. See 15 V.S.A. § 1035 (2010) (under UCCJA court is directed to communicate with other states where proceedings concerning child are pending); 15 V.S.A. §§ 1068, 1070 (encouraging communication and cooperation between interested courts under UCCJEA). This cooperation is the key to avoiding conflicts between jurisdictions. Importantly, early notification to father and Sri Lanka serves the children’s best interests by identifying all possible custodians at an early stage, adjudicating their appropriateness to parent, and thus facilitating a more expedient resolution of permanency for the children. *140 ¶ 64. Going forward, if father responds to the notice and elects to participate, due process demands that he be provided with an opportunity to be heard at the hearing. 15 V.S.A. § 1033 (2010) (under UCCJA, before an order can issue, parent must be provided with “notice and opportunity to be heard”). Father’s actual presence is not, however, required, and his participation may be satisfied through other means. See Div. of Youth & Family Servs. v. M.Y.J.P., 823 A.2d 817, 841-42 (N.J. Super. Ct. App. Div. 2003) (explaining that procedural requirements for parental termination cases are heightened, but “do not confer a constitutional right of confrontation or mandate a parent’s presence at trial” and noting that particular situation may allow for participation by telephone or deposition). ¶ 65. To the extent that father seeks to participate remotely, the relevant law supports this request. The UCCJA states: “In addition to other procedural devices available to a party, any party to the proceeding . . . may adduce testimony of witnesses, including parties and the child, by deposition or otherwise, in another state.” 15 V.S.A. § 1046 (2010); see id. § 1051 (specifying that UCCJA terms apply to “international area”). 14 At the prior hearing, the trial court applied Family Rule 17 on telephone procedures to bar father’s apparent request to appear by telephone because it was not satisfactorily assured of the adequacy of its technology or of father’s identity. On remand, I believe these concerns can be easily remedied, especially given that they are now known in advance. Any technology concern can be alleviated by scheduling father’s appearance in a properly equipped courtroom. As to identification of father, the court can satisfy this requirement in a variety of ways including through the testimony of an individual, such as mother, who is familiar with father’s voice *141 or by having father appear in Sri Lanka at a site where an official can confirm father’s identity based on photographic documentation. With these accommodations in mind, the trial court can resolve the termination petition in a timely fashion while still preserving father’s right to meaningful participation. ¶ 66. As I noted above, I think it more and more likely that our child welfare system will be required to intervene to protect children who are citizens of another country and whose parent(s) and other relatives reside in that country. The system has to protect the rights and interests of a parent or relative who resides in the foreign country and, importantly, evaluate whether the interest of the child would be better served by a living arrangement in the country of the child’s citizenship. Realistically, if the parent involved in this case is to have a meaningful role in the life of his daughters, he has to move here or the children must return to Sri Lanka. I do not underestimate the difficulty of making the best choices for the children while protecting the interests of foreign parents in these circumstances. I concur to stress the urgency and importance of overcoming that difficulty. ¶ 67. I am authorized to state that Justice Johnson joins this concurrence. According to the U.S. Census Bureau, in 2009, there were 1,865,000 foreign-born children fourteen years and younger living in the United States. U.S. Census Bureau, Statistical Abstract of the United States: 2011, at 44 tbl. 40, available at http://www.census.gov/compendia/statab. In addition, the Census Bureau reports that in Vermont 3.9% of the population is foreign-born. Id. at 43 tbl. 38. In making statements about notice to father, I am relying on the record before us. I recognize, however, that the record may be incomplete. For example, while we had no record that DCF notified father of the pendency of this appeal until this Court ordered such notice, an affidavit from an assistant attorney general expressly indicates that she did in fact send a copy of her brief to father by mail. I would encourage DCF to make all contacts with father part of the record. The record contains no indication that the State tried to serve father with notice of the CHINS proceeding, even by publication. In its brief, DCF states: “During all of this time [that the CHINS case was pending], DCF was unable to ascertain father’s whereabouts, beyond the general fact of his continued residence in Sri Lanka.” The first action to notify father of the proceeding shown by the record was the assignment of an investigator from the Office of the Attorney General to locate father for purposes of notifying him of the termination hearing. The investigator’s attempt and failure to locate father is detailed in an affidavit which DCF used to justify notice of the termination hearing by publication. In 2008, the Legislature revised the statutes related to juvenile proceedings. See 2007, No. 185 (Adj. Sess.), eff. Jan. 1, 2009. The current statute specifically designates that following an emergency care order, DCF is required to “make reasonable efforts to locate any noncustodial parent and provide the noncustodial parent with the emergency care order or conditional custody order, notice of the date, hour, and place of the temporary care hearing, and right to counsel.” 33 V.S.A. § 5306(b). The statute requires further that: “If the noncustodial parent cannot be located, [DCF] shall provide to the court a summary of the efforts made to locate the parent.” Id. !The Legislature recently repealed the UCCJA and adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), effective July 1, 2011. 15 V.S.A. § 1096. The UCCJEA states that motions “commenced before the effective date . . . [are] governed by the law in effect at the time the motion or other request was made.” Id. Because DCF filed the petition to terminate father’s rights prior to July 1, 2011, the UCCJA, not the UCCJEA, applies to father’s termination heai'ing. Even though not applicable to this case, the UCCJEA revisions may be used as a guide for the parties and court given the more explicit instructions on accommodating a remote party. See 15 V.S.A. § 1063(b) (providing that a “Vermont court shall treat a foreign country as if it were a state of the United States” for purposes of applying relevant provisions on accommodation). For example, documentary evidence from outside the state can be admitted even if transmitted by technological means not producing an original. Id. § 1069(c). In addition, the court may allow the testimony of a witness located in another state to be taken “by deposition or other means allowable in Vermont for testimony taken in another state.” Id. § 1069(a). Alternatively, an individual in another state may “be deposed or [permittedj to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state.” Id. § 1069(b). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9522105. Public record. Not legal advice.