Rule 3.Termination of Parental Rights

REPORTER'S NOTES--2018 AMENDMENTS: Rule 3(b) is amended to change its 15-day time period to 14 days consistent, with the simultaneous “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter's Notes to simultaneous amendments of V.R.F.P. 1.

REPORTER'S NOTES--2010 AMENDMENT: Emergency amendments to V.R.F.P. 1-3, 6, and 12 intended to implement 33 V.S.A. chapters 51-53 as enacted by Act 185 of 2007 (Adj. Sess.), effective January 1, 2009, were promulgated on December 17, 2008, effective January 1, 2009, with a direction that the Advisory Committee on Family Rules report on any comments received by September 30, 2009. No comments having been received, these amendments are now made permanent.

REPORTER'S NOTES--2009 EMERGENCY AMENDMENT: Rule 3 is amended on an emergency basis to incorporate in the rule changes made necessary by the enactment of Act No. 185 of 2007 (Adj. Sess.), which repealed 33 V.S.A. chapter 55 covering juvenile proceedings and replaced it with 33 V.S.A. chapters 51-53, effective January 1, 2009. Simultaneous amendments have been made to Rules 1, 2, 6, and 12. Most of the changes simply substitute references to appropriate sections of the newly enacted legislation. Rule 3(a)(2) is amended to substitute “case plan” for “report” consistent with new 33 V.S.A. § 5316 and to add an attorney for the child as a potential signer of a TPR petition or motion consistent with new 33 V.S.A. § 5317(d). Rule 3(b) is amended to substitute “pretrial hearing” for “status conference” throughout, consistent with 33 V.S.A. § 5313(a). See Reporter's Notes to amendment of Rule 2(e).

REPORTER'S NOTES--2008 AMENDMENT: Rule 3(a)(3) as promulgated January 11, effective March 11, 2008, is amended for clarity at the suggestion of the Legislative Committee on Judicial Rules. The amendment divides the rule into separate subparagraphs covering parents who have appeared and those who have not appeared and makes clear that the rule applies to a single parent as well as to “parents.”

REPORTER'S NOTES--2008 AMENDMENT: Rule 3(a) is amended to reflect the holding of In re M.T., 2006 VT 114, 180 Vt. 643, 912 A.2d 456 (mem.), which requires that notice of a pending hearing for termination of parental rights be served by the court directly upon the parents of the child. See also In re J.L., 2007 VT 32, 181 Vt. ___, 928 A.2d 474 (mem.) (when notice mailed by court to father at last address provided by him returned because father had not notified court of address change, In re M.T.'s requirement of “direct notice” satisfied where father had in fact received actual notice). For clarity, subdivision (a) is divided into three numbered paragraphs. New paragraph (3) provides that, if the parents have appeared in open court in the underlying CHINS proceeding, service by first-class mail as provided in V.R.C.P. 5(b)(2) must be made directly on them by the court. The rule permits the court to order service by another method, with the expense of that service to be borne by the party who is seeking termination of parental rights. Presumably, to minimize expense, such service will be ordered only when the court deems first-class mail to be ineffective--for example, when personal service is necessary to secure the appearance of a parent or publication is necessary because no address is known. Service on the parents is in addition to service required by V.R.C.P. 5(b)(2) upon any attorney still representing them. The amended rule does not contemplate service of a formal summons and complaint on parents who have appeared. See In re M.T., 2006 VT 114, ¶¶ 9-11. Where, as frequently occurs, parents are present for an initial detention hearing in a juvenile case, they will be aware of that proceeding and the facts that the child may be in the custody of another (including the state) and that that custody may become permanent. In such a case, sufficient notice will be provided by direct mail or personal service of the petition itself and the notice of hearing. See id. ¶ 11. The record of the hearing should reflect that the court has requested and obtained a good address and that the parent has been apprised of the responsibility to notify the court of any changes in address. If the parents have not appeared in open court in the CHINS proceeding by reason of default or lack of notice, then, consistent with the provision of V.R.C.P. 5(a) where new claims are asserted against a party in default, service is to be made by a method appropriate for original service of the petition under Rule 2. See V.R.F.P. 2(a)(3); 33 V.S.A. §§ 5519, 5520. The responsibility for executing service and its cost are on the party seeking termination of parental rights.

REPORTER'S NOTES--2000 AMENDMENT: Rule 3(a) is amended to make clear that the time periods of Rule 3(b) governing proceedings on a petition for termination of parental rights (TPR) begin to run with the filing of written indication that the Department of Social and Rehabilitation Services (SRS) is recommending TPR, whether in a dispositional or permanency planning report or a case management plan. That filing must be accompanied by the motion or petition that triggers the time periods of Rule 3(b), and the motion or petition must be signed by an attorney for the state. The amendment assures that an attorney will be involved when TPR is in issue, makes clear that the Rule 11 obligation of the attorney for the state is confined to the motion or petition, and gives parents clear notice that their rights may be terminated in the proceeding. The amendment of Rule 3(b) is intended to facilitate the establishment of a definite hearing date in order to move TPR proceedings forward expeditiously. If the judge cannot set the hearing date at the first status conference because discovery is required, a second status conference is to be scheduled for a date certain. The rule makes clear that the hearing date will be set at the second conference. Attorneys must be ready to address at these conferences the amount of case preparation necessary so that a realistic date and length of time can be assigned for the hearing. The amendment is not intended to prevent the court from granting a continuance of a scheduled conference for cause. See V.R.C.P. 40(c), (d); V.R.F.P. 2(a)(3), (b), 3(a).

REPORTER'S NOTES: Family Court Rule 3 governs proceedings in which a petition, motion or request has been filed seeking custody of a child without limitation as to adoption. See 33 V.S.A. §§ 5532, 5540. The rule adopts by reference all of Family Court Rule 2, which governs “chins” proceedings. Certain deviations from Rule 2, however, are imposed by this rule. First, the rule requires that all such requests be in writing and notify the respondents that termination of parental rights in fact is being sought. The court must receive a copy of the request. Second, a status conference must be held within fifteen days of the filing of the petition in all cases. Third, either the trial on the merits will be scheduled at the status conference or a discovery schedule will be issued, together with a date for a second status conference. These departures from Rule 2 recognize the seriousness of terminating parental rights and the need for adequate time for every party to adequately prepare for the hearing.