Boisvert v. Harrington

Skoglund, J.

Mother Julie A. Boisvert appeals from an order of the superior court denying her motion to terminate a guardianship over her minor son, Kelsey Harrington, and ordering an evidentiary hearing on the issue. Mother contends: (1) the guardianship was freely revocable and, therefore, the court erred in ordering an evidentiary hearing; and (2) the court violated her constitutional rights as a parent, and her constitutional right to due process. We affirm.

This case concerns a twelve year old boy whose grandparents have served as his court-ordered guardians since he was thirteen months old. The underlying facts are not well developed because the matter was appealed before an evidentiary hearing, as ordered by the probate and superior courts, could occur. Certain facts, however, are undisputed. The child was bom in November 1988. Mother was not married to the child’s father and he has since died. In January 1990, mother petitioned the probate court to appoint her mother and stepfather, Sheila and Ronald Harrington, as guardians for the boy. Finding that a transfer of custody was “in the best interest of the child,” the court granted the petition. In 1996, mother was incarcerated for two months. Since that time, the boy has resided primarily with the Harringtons, and has not had contact with mother since August 1997. Mother acknowledges that after her release from prison, she abducted the minor and was charged with custodial interference.

We note, as well, the extensive probate court record in this case (which we may judicially notice) which contains numerous status reports and two psychological evaluations by a court-appointed clinical psychologist, one submitted to the court in January 1998 and a second in August 1999. These records evidence a high level of family conflict and a troubled relationship between the minor and mother, resulting in a court order requiring that visits between the minor and mother be supervised.

In February 1999, mother moved again to terminate the guardianship. She argued that because she had consented to the guardianship under 14 V.S.A. § 2645(4), it should be freely revocable without the necessity of an evidentiary hearing or any showing that revocation was in the best interests of the minor.1 The probate court ruled that termination of the guardianship was governed by 14 V.S.A. § 3003 and § 3004, which require a hearing to determine if the parent is then the proper person to have care and custody of the child.2 The probate court thus denied the request for automatic revocation and ordered an evidentiary hearing. Mother appealed to the superior court, which upheld the decision of the probate court, ruling that the probate court has “inherent authority over a guardianship created under its authority . . . regardless if the guardianship was a voluntary or involuntary one.” The court concluded that the original guardianship order had found mother to be “unsuitable,” and thus the hearing procedures for terminating a guardianship under § 3003 and § 3004 were appropriate. This appeal followed.

Before we address the merits of the appeal, we clarify the basis for our jurisdiction. Following its decision, the superior court remanded the case to the probate court to conduct an evidentiary hearing. Thus, there is no final judgment in the case because that decision did not resolve the controversy between the parties. See Huddleston v. Univ. of Vt., 168 Vt. 249, 251, 719 A.2d 415, 417 (1998). Under these circumstances, mother’s proper recourse should have been to request permission to take an interlocutory appeal pursuant to V.R.A.P. 5(b), which she failed to do. According to V.R.A.P. 2, however, we have discretion to suspend “application of Rule 5 where dismissal would most likely result in another appeal after remand, the merits of the question of law were fully briefed and argued, and the Court has expended valuable time on the case.” In re Smith, 169 Vt. 162, 167, 730 A.2d 605, 609 (1999). Given that these requirements have been met in this case, we entertain this appeal under V.R.A.P. 2.

In denying mother’s request to revoke the guardianship, the lower courts based their decisions on their interpretation of Vermont’s guardianship statutes. There are five statutory devices for creating a guardianship:

(1) When the minor has no parent living authorized to act as guardian; or

(2) When the parent is under guardianship or shown to be incompetent or unsuitable to have the custody of the person of the minor; or

(3) When the parent of the minor resides without the state and has so resided for three years and has not contributed to the minor’s support during such time. . ,;or

(4) When no parent objects and transfer of custody is in the best interest of the minor. . .;or

(5) When the minor has a parent living and the minor is the owner of real or personal property.

14 V.S.A. § 2645.3

There are also express statutory provisions for the termination of a guardianship issued under § 2645(2) (when the parent is shown to be “incompetent or unsuitable”), see 14 V.S.A. §§ 3003, 3004, but the statutes are silent on the termination of court-ordered guardianships under 14 V.S.A. § 2645(4) (“[w]hen no parent objects and transfer of custody is in the best interest of the minor”). This tells us little in itself. Prior to the enactment of § 2645(4) in 1982, see 1981, No. 153 (Adj. Sess.), § 1, the statute contained only the equivalent of § 2645(2) for the appointment of guardians in cases of parental incompetence or unsuitableness, and the revocation statute not surprisingly addressed only this circumstance. When § 2645(4) was added, the Legislature failed to adopt a parallel amendment establishing procedures or standards for revocation of guardianships established under the new provision.

The omission does not, however, leave us entirely without legislative guidance. As noted, prior to the addition of § 2645(4) to the guardianship statute, it contained a provision for appointment of a guardian upon a showing that the parent was incompetent or unsuitable, and a parallel provision for revocation of the guardianship if, after a hearing, the court “is of the opinion that the parent is then a proper person to have the care and custody of the child.” 14 V.S.A. § 3004. Having provided for a hearing on the merits of revocation when the parent has been found “incompetent or unsuitable” under § 2645(2), it is reasonable to assume that the Legislature intended a similar hearing when custody was transferred in the “best interest of the minor” under § 2645(4). In either case, revocation would be contingent upon a finding, after hearing, that the circumstances which precipitated the transfer of custody no longer obtained.

Mother emphasizes the statutory requirement that she not “object” to the guardianship under §2645(4), a requirement not present under § 2645(2). This alone does not suggest that she may revoke the guardianship at her whim. The statute also requires a finding that the transfer of custody be in the “best interest of the minor.” It stands to reason that, in revisiting its previous ruling, a court should be persuaded that the guardianship is no longer in the child’s best interest. Certainly this appears to be more consistent with the legislative scheme than automatic revocation.

It is also more consistent with child custody and guardianship law as a whole. It is fundamental that the state’s paramount and indefeasible duty in custody determinations is to safeguard the welfare of the child. As we explained in Paquette v. Paquette, 146 Vt. 83, 90, 499 A.2d 23, 28-29 (1985):

The courts of this state have long recognized that, even in those early days when custody of a child was viewed as a form of property right, “the natural right of the father to the custody of his child cannot be treated as an absolute property right, but rather as a trust reposed in the father by the state as parens patriae for the welfare of the infant.”

Id. (quoting Bioni v. Haselton, 99 Vt. 453, 457, 134 A. 606, 607 (1926)).

Nowhere is this more evident than in the guardianship context. In this, as in most states, the probate court essentially exercises a continuing jurisdiction over both the guardian and the ward, and may suspend the guardian for a failure to perform his or her statutory duties. See 14 V.S.A. § 3011 (when guardian fails to perform duties, court may suspend guardian and appoint special fiduciary). Indeed, in appointing a guardian the court assumes the primary responsibility to protect the minor or others who are unable to care for themselves. “In reality the court is the guardian; an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility.” Kicherer v. Kicherer, 400 A.2d 1097, 1100 (Md. 1979); see also In re Carstens’ Guardianship, 37 N.W.2d 581, 584 (Neb. 1949) (guardian is “an officer of the court,” which enjoys “broad judicial discretion in the matter of removal or refusal to remove a guardian”); Clendenning v. McCall, 60 N.E.2d 676, 681 (Ohio 1945) (“A guardian is an officer of the court appointing him. ... A guardian appointed by a court... is always under the court’s control and is subject to its directions and supervision.”). Thus, interpreting the statute to divest the court of its plenary authority to continue or revoke a guardianship — and place that authority instead in the parent who was removed from custody — would represent a fundamental break with traditional common law principles. See Swett v. Haig’s, Inc., 164 Vt. 1, 5, 663 A.2d 930, 932 (1995) (statutory language of uncertain meaning will not be construed to change or abrogate common law rules).

Mother cites no authority to support the concept of a “freely revocable” guardianship, nor has our research disclosed any case law or statutes embodying such a scheme. On the contrary, while the cases uniformly acknowledge a presumption in favor of parental custody, all recognize that the presumption may be overcome through an evidentiary showing that continuation of the guardianship remains in the child’s best interest. In In re Guardianship of Williams, 869 P.2d 661 (Kan. 1994), for example, the trial court not only held an evidentiary hearing on the mother’s petition to terminate the guardianship over her son, but took “considerable testimony” on the respective parenting abilities of the mother and the guardian, and denied termination of the petition. Id. at 663. Although the Kansas Supreme Court ruled that the trial court had erred in failing to apply a parental preference, there was no suggestion by the court that the mother was entitled to automatic revocation. Similarly, in In re Guardianship of R.B., 619 N.E.2d 952, 955 (Ind. Ct. App. 1993), the trial court made specific findings that demonstrated “ample support for the decision . . . that it was in R.B.’s best interest to be in [his mother’s] custody.” The governing statute provided that a court may terminate a guardianship if the guardianship is “no longer necessary for any reason.” Id. at 954. “Because sufficient evidence was presented to the effect the guardianship was no longer necessary,” the statute was satisfied. Id. In In re Guardianship of Stewart, 369 N.W.2d 820, 824 (Iowa 1985), the court observed that the parental preference doctrine was not the “controlling factor.” Rather, “[a]s in all child custody matters the first and governing consideration must be the best interest of the affected child.” Id.

In all of these cases, the courts recognized certain fundamental principles: that the proper inquiry in a termination of guardianship proceeding is the best interests of the minor; that there is a presumption the minor’s best interests lie with parental custody; and that the burden is on the party opposing revocation to overcome this presumption. None, however, supports the proposition that the guardianship is “freely revocable” at the will of the parent. On the contrary, to recognize these principles is to acknowledge that they must apply in some evidentiary setting in which the nonparent carries the burden. This precludes, by definition, the concept of revocation at will.

Moreover, the parental preference doctrine is only that — a preference — an advantage given to parents over other persons. It does not answer the question of what is in the child’s best interest.

The day is long past in this State, if it had ever been, when the right of a parent to the custody of his or her child, where the extraordinary circumstances are present, would be enforced inexorably, contrary to the best interest of the child, on the theory solely of an absolute legal right. Instead, in the extraordinary circumstance, when there is a conflict, the best interest of the child has always been regarded as superior to the right of parental custody. Indeed, analysis of the cases reveals a shifting of emphasis rather than a remaking of substance. This shifting reflects more the modem principle that a child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too, some of which are of a constitutional magnitude.

Bennett v. Jeffreys, 356 N.E.2d 277, 281 (N.Y. 1976) (quoted with approval in Paquette v. Paquette, 146 Vt. at 88-89, 499 A.2d at 28).

Finally, mother suggests that an inquiry into the minor’s best interests would violate her parental or due process rights because there is no assurance that the initial guardianship proceeding was accompanied by adequate procedural safeguards. See Rutherford v. Best, 139 Vt. 56, 63, 421 A.2d 1303, 1307 (1980) (when probate proceeding is used to separate parent and child, “fundamental fairness requires that an adequate record be prepared and that the probate judge make findings, so that on appeal to this Court, we can determine whether the record supports the findings and whether the findings support the judgment”). The answer to this concern is simply for probate courts in § 2645(4) guardianship proceedings to ensure that the parents are aware of their rights, and that an adequate record and findings are prepared. Although the record of the initial guardianship proceeding in this case was apparently not available for review, it is undisputed that the probate court made an express finding that the guardianship was in the best interests of the minor, and there is no indication that the finding was unsupported by the evidence or that mother was denied due process. See State v. Brown, 165 Vt. 79, 87, 676 A.2d 350, 355 (1996) (“presumption of regularity” attaches to prior judicial proceedings).

The right to care for one’s children is a fundamental liberty interest, recognized and protected by this and the United States Supreme Court. See Stanley v. Illinois, 405 U.S. 645, 651 (1972); Rutherford, 139 Vt. at 60, 421 A.2d at 1306. Thus, a parent who seeks to revoke a guardianship under § 2645(4) enjoys a presumption that his or her custody is in the child’s best interest. However, nothing in our constitutional or statutory scheme, the common law, or general practice supports the proposition that the guardianship is terminable at will. Where, as here, the current guardians and the minor’s court-appointed attorney oppose revocation, the court must be free to order an evidentiary hearing to determine whether granting the petition is in the best interests of the child.4

This decision does no violence to the parental preference doctrine; it does not grant guardians greater rights than a natural parent.5 What it does, is recognize that when a petition for guardianship was brought before it, a court of law agreed with a natural parent and made a determination that the child would be better off with someone other than the parent as guardian. The court then assumed primary responsibility for the child. The dissent’s approach would permit a parent who relinquished guardianship of their child to revoke the court’s order transferring guardianship and resume their role as parent without any evaluation by the court of what this change might do to the child’s well-being or best interests. This denigrates the role of the probate court and reduces its determinations to a mere piece of paper.

Affirmed.

1 As discussed more fully below, § 2645(4) provides for appointment of a guardian for a minor “[w]hen no parent objects and transfer of custody is in the best interest of the minor.”

2 Section 3003 provides that when, “by reason of the incompetency or unsuitableness of a parent,” another person has been appointed guardian, the parent may at any time file a motion for removal of the guardian, and the court shall schedule a hearing on the matter. Section 3004 provides that the court may revoke the guardianship if, after hearing, it is “of the opinion that the parent is then a proper person to have the care and custody of the child.”

3 Although the lower courts construed the guardianship order in this ease to ereate a guardianship under §2645(2) (when the parent is shown to be “incompetent or unsuitable”), this conclusion is unsupported by the record, which shows that it was created under § 2645(4) (when “no parent objects and transfer of custody is in the best interest of the minor”). The superior court relied on a finding of the probate court in its 1990 order, which stated: “The mother is presently unable to provide adequate and proper care.” The court construed this to represent a finding that mother was an “unsuitable parent” under §2645(2), although the probate court never used this language. The guardianship petition was brought under §2645(4), and the court’s express finding that a transfer of custody was ‘In the best interest of the child” compels the conclusion that the petition was granted on the basis in which it was brought.

4 Where the guardians choose not to oppose revocation, but the circumstances otherwise raise concerns about the welfare of the child, the court may appoint counsel for the child and a guardian ad litem — if they have not been previously appointed — to investigate the circumstances, and may then determine whether an evidentiary hearing is necessary. See V.R.F.P. 6(c)(2) (authorizing appointments by probate court). The mere fact that the guardians acquiesce in the parental petition to revoke does not, however, compel the court to grant the petition. As noted, the court retains inherent authority over guardianships created under its auspices, and the ultimate responsibility to ensure that revocation is in the child’s best interests. That responsibility cannot be delegated to the current guardians, or to anyone else.

5 And it, in no way, disturbs our holding or rationale in In re S.B.L., 150 Vt. 294, 553 A.2d 1078 (1988), as suggested by the dissent. In re S.B.L. was an initial custody dispute between the father of a child bom out of wedlock and a grandparent. What is at issue here is the assertion by a parent that she may unilaterally revoke or overturn a probate court’s decision, an issue not presented in In re S.B.L.