In re C.B., Juvenile

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2020 VT 80

No. 2020-111

In re C.B., Juvenile Supreme Court

On Appeal from
Superior Court, Windham Unit,
Family Division

July Term, 2020

Katherine A. Hayes, J.

Sarah R. Star of Sarah R. Star P.C., Middlebury, for Appellant Father.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Martha E. Csala, Assistant Attorney
General, Waterbury, for Appellee Department for Children and Families.

Adele V. Pastor of Adele V. Pastor Law Office, Barnard, for Appellee Juvenile.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. REIBER, C.J. Father appeals a family division order terminating his parental

rights to his son C.B., born in August 2016. On appeal, father alleges that the court committed

several errors related to paternal grandmother’s requests for a guardianship of C.B. in the probate

division and for visitation with C.B. in the family division. Father also asserts that the court

deprived him of standing at the merits stage, failed to assign him counsel, and erred in not directing

a suitability assessment of paternal grandmother at the initial temporary-care hearing. We affirm.

¶ 2. The State filed a petition alleging that C.B. was a child in need of care or

supervision (CHINS) in October 2017 based on allegations that father had repeatedly engaged in

domestic violence and mother continued to allow father to be around her and C.B. despite repeated
abuse and court orders barring contact. At the time the case was filed, mother was the custodial

parent and father was not yet identified as C.B.’s parent. Mother, as the custodial parent, stipulated

to the merits in January 2018 and agreed that C.B. was without proper parental care. C.B. was

placed with mother under a conditional custody order (CCO), which prohibited mother from

allowing contact between father and C.B. as long as court-imposed criminal conditions of release

barred such conduct. A disposition order was issued in March 2018 that continued conditional

custody with mother. Custody of C.B. was transferred to the Department for Children and Families

(DCF) after mother violated the CCO, including by permitting father to have contact with C.B.,

and then the court transferred custody back to mother with conditions. In August 2018, the court

transferred custody of C.B. to DCF based on its finding that mother had violated the terms of the

CCO. DCF placed C.B. with a foster family, where he has since remained.

¶ 3. Father’s parentage was established in January 2018 and he was added as a party to

the case. A January 2018 order gave father the right to supervised parent-child contact, but he did

not follow through and no visits took place. In June 2018, father filed a public-defender application

and was assigned counsel. Father was incarcerated in November 2018 and remained there

throughout the rest of the case. Father has a lengthy criminal history including a conviction for

attempted aggravated assault with a deadly weapon. At the time of the final hearing, he had several

charges still pending.

¶ 4. In January 2019, the court issued a modified disposition order, continued DCF

custody, and approved and adopted DCF’s case plan with a goal of reunification with parents.

Father’s goals included securing housing, attending appointments with a mental-health provider,

refraining from criminal acts, working on domestic violence and other issues in therapy, and

demonstrating progress in therapy and parenting programs. At the time, father was incarcerated

and not permitted to have contact with C.B. In March 2019, father sent a letter to DCF indicating

that he did not want further interaction with C.B. Petitions to terminate parental rights were filed

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in May 2019. Mother relinquished her parental rights conditioned on father’s parental rights being

terminated.

¶ 5. Following a hearing, the court found the following. There was a change of

circumstances based on father’s stagnation. Father had not made progress on important goals, had

not had any contact with C.B., and had no relationship with him. Father had not addressed his

significant history of violence and serious mental-health issues. Father had not taken the necessary

steps to address his mental-health or emotional issues, had not engaged cooperatively with DCF,

and had had no contact with C.B. The court assessed the statutory best-interests factors. The court

found that C.B. had high needs due to his trauma history and required a consistent routine. He

was bonded with his foster parents and had no relationship with mother or father. C.B. was

adjusted to his current home and school and had made progress through his therapy. Father could

not parent C.B. within a reasonable time. Father required safe housing, employment, therapy,

parenting classes, and time to develop a relationship with C.B. Given father’s lack of progress

towards achieving case-plan goals, there was no possibility he could safely parent C.B. in a time

reasonable for C.B., given C.B.’s need for permanency. Father appeals.

¶ 6. Termination of parental rights after initial disposition requires the court to find a

change of circumstances and that termination is in the child’s best interests. In re D.F., 2018 VT

132, ¶ 29, 209 Vt. 272, 204 A.3d 641. “As long as the court applied the proper standard, we will

not disturb its findings unless they are clearly erroneous, and we will affirm its conclusions if they

are supported by the findings.” Id. ¶ 30 (quotation omitted).

I. Temporary Placement

¶ 7. On appeal, father argues that there were several errors made during the pendency

of the proceeding, which require reversal. Father’s first few claims relate to paternal grandmother.

At a May 2018 temporary-care hearing, the court asked the parties about potential placements.

Several relatives were discussed, including paternal grandmother. Mother expressed that she did

3
not want C.B. placed with father’s family, “unless that was a last resort.” The court indicated that

it was not interested in pursuing paternal grandmother as a placement “unless there’s been a very

grave misunderstanding as to her involvement in the events that led to this order.”

¶ 8. On appeal, father claims that the court directed DCF to disregard the law and

improperly dismissed paternal grandmother as a potential placement without conducting a

suitability assessment as required by statute. Pursuant to 33 V.S.A. § 5307(e), at a temporary-care

hearing, DCF is required to provide certain information to the court, including the identity of

relatives that might be “appropriate, capable, willing, and available to assume temporary legal

custody of the child.” Id. § 5307(e)(5)(A). For those identified, DCF is directed to complete a

suitability assessment. Id. § 5307(e)(5)(B).

¶ 9. Father’s argument has not been preserved for appeal. See In re C.H., 170 Vt. 603,

604, 749 A.2d 20, 22 (2000) (mem.) (explaining that parent must raise issue below to preserve it

for appeal). There was no objection at the temporary-care hearing or later in the proceeding to the

court’s direction to DCF or DCF’s action in not pursuing paternal grandmother as a placement at

that time. Because the issue was not raised with the trial court, there was no opportunity for the

court or DCF to explain the reasons for their actions. On appeal, the State contends that there were

credible reasons for the court to find that grandmother was not an “appropriate” placement, 33

V.S.A. § 5307(e)(5)(A), including that she had allowed father to see C.B. in violation of father’s

conditions of release. Given the lack of preservation, we do not address the argument. See In re

A.M., 2015 VT 109, ¶ 28, 200 Vt. 189, 130 A.3d 211 (explaining that to properly preserve

argument for appeal, party “must present the issue with specificity and clarity in a manner which

gives the trial court a fair opportunity to rule” (quotation omitted)).

II. Grandparent Visitation

¶ 10. Father also claims that the court erred in denying grandparent visitation. After the

termination petition was filed in the family division in May 2019, paternal grandmother sought to

4
appear in the juvenile proceeding through an attorney and requested visitation. The court declined

to enter grandmother as a party and denied the request for visitation. The court acted within its

authority in denying this request. Grandparents, who are not guardians or custodians, are not

parties in juvenile proceedings. See 33 V.S.A. § 5102(22) (defining parties to juvenile

proceedings). Moreover, there is no statutory right to grandparent visitation for children who are

the subject of juvenile proceedings. See id. § 5319(e) (providing that court “may” order contact

with relative of child “[u]pon motion of the child’s attorney”).

III. Guardianship Petition

¶ 11. After the State moved to terminate parental rights, paternal grandmother filed for a

guardianship of C.B. in the probate division. The probate division’s jurisdiction over guardianship

proceedings when the same child is the subject of a custody proceeding in the family division is

governed by a statute pertaining to guardianship adopted by the Legislature in 2014, 2013, No.

170 (Adj. Sess.), § 1, and a 2016 amendment to the statute governing permanent guardianships in

juvenile cases, 2015, No. 170 (Adj. Sess.).1 The purpose, history, and scope of these legislative

enactments are important to resolution of this appeal.

A. Relevant Statutes

¶ 12. The 2014 legislation was the culmination of a multi-year effort to update the minor

guardianship laws and to deal specifically with the relationship between minor guardianship

proceedings in the probate division and CHINS or domestic cases in the family division. In 2011,

the Legislature established a multi-stakeholder committee to study issues related to probate and

family division jurisdiction over minor guardianship proceedings. 2011, No. 56, § 23. The

committee was charged with studying, among other things, “the circumstances under which it is

appropriate to transfer minor guardianship proceedings between the probate and family divisions,

1
Because the 2014 and 2016 statutes have the same Act number, they are referred to as
the 2014 and 2016 Acts, respectively.
5
including which division should have authority to order the transfer” and what criteria should

apply; the role of DCF in minor guardianship proceedings in the probate division; and whether and

what changes to minor guardianship proceedings would best serve the interests of children. Id.

§ 23(a)(1), (4), (5).

¶ 13. In its 2012 report, the committee noted that the legal structure for minor

guardianships had not been comprehensively revised since the initial enactment in the 1920s and

identified challenges in the existing guardianship structure. Minor Guardianship Proceedings in

Vermont, 2012 Report to the Vermont Legislature 4-5 (Dec. 15, 2012), https://

legislature.vermont.gov/Documents/2014/WorkGroups/House%20Judiciary/Bills/H.581/Witness

%20Testimony/H.581~Amy%20Davenport~Minor%20Guardianship%20Proceedings%20in%20

Vermont%202012%20Report%20to%20the%20Vermont%20Legislature~12-4-2013.pdf [https://

perma.cc/TL64-PEJD]. The committee’s recommendations became the basis for the 2014 Act.

See Act Summary, 2013, No. 170 (Adj. Sess.), https://legislature.vermont.gov/Documents/

2014/Docs/ACTS/ACT170/Act170%20Act%20Summary.pdf [https://perma.cc/4GVD-FY7B].

¶ 14. The 2014 Act made significant changes to the structure of the minor guardianship

statute. First, it more clearly distinguished between consensual and nonconsensual minor

guardianship proceedings. Consensual minor guardianships are based on the consent of the

parents. See 14 V.S.A. § 2626(a). To create a consensual minor guardianship, the probate division

must find by clear and convincing evidence that the child is in need of guardianship, the parents

had notice and knowingly and voluntarily consent to the guardianship, the proposed guardian is

suitable, and the guardianship is in the child’s best interests. Id. § 2626(d). For the purposes of a

consensual guardianship, “child in need of guardianship” includes, among other things, a child

who is in need of adult care because a custodial parent’s physical or mental health prevents the

parent from providing proper care and supervision for the child. Id. § 2622(2)(A)(ii).

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¶ 15. In contrast, nonconsensual guardianships are established without the consent of the

parents. See id. § 2627. The 2014 Act aligned the standard for granting a nonconsensual

guardianship more closely with the standards for determining if a minor is CHINS under Title 33.

The proposed guardian must establish by clear and convincing evidence that the child is a child in

need of guardianship and the proposed guardian is suitable. Id. § 2627(a), (c). For purposes of a

nonconsensual guardianship, “a child in need of guardianship” includes a child who is abandoned

or abused by the child’s parent; without proper parental care, subsistence, education, medical or

other care necessary for the child’s well-being; or without or beyond parental control. Id.

§ 2622(2)(B). This aspect of the definition of a child in need of guardianship roughly mirrors the

definition of CHINS for purposes of a juvenile proceeding in the family division. Compare 14

V.S.A. § 2622(2)(B), with 33 V.S.A. § 5102(3). For either a consensual or nonconsensual

guardianship, the resulting guardianship order must address the powers and duties of the guardian,

include the expected duration of the guardianship, if known, and provide a family plan addressing

matters such as parent-child contact. 14 V.S.A. § 2628.

¶ 16. In addition, the 2014 Act resolved the issues regarding the overlapping jurisdiction

of the probate and family divisions when a CHINS proceeding in the family division and a

custodial minor guardianship proceeding in the probate division involving the same child are both

pending at the same time. The 2014 Act clarified that the probate division has exclusive

jurisdiction over minor guardianship proceedings except that when there is an open proceeding in

the family division involving custody of the same child, the guardianship proceeding must be

transferred to the family division. Id. § 2624(a), (b)(1)(A). When the custodial minor guardianship

proceeding is transferred to the family division, the probate judge and superior judge in the family

division must confer on the record. Id. § 2624(b)(2)(A). Thereafter, the superior judge may:

(i) consolidate the minor guardianship case with the pending matter
in the Family Division and determine whether a guardianship should
be established under [the minor guardianship statute]; or

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(ii) transfer the guardianship petition back to the Probate Division
for further proceedings after the pending matter in the Family
Division has been adjudicated.

Id. § 2624(b)(2)(C). If the family division establishes a minor guardianship, the case is transferred

back to the probate division for ongoing monitoring. Id. § 2624(b)(2)(D).2

¶ 17. The second recent legislative enactment that impacts the trial court’s options in a

case like this is 2015, No. 170 (Adj. Sess.), enacted in 2016. This legislation grew out of the efforts

of the Best Practices Subcommittee of the Justice for Children Task Force. See Written Testimony

of Pamela Marsh to Senate Committee on Judiciary regarding S.183, 2015-2016 Bien. Sess. (Vt.

Feb. 25, 2016) [hereinafter Marsh Testimony], https://legislature.vermont.gov/Documents/2016/

WorkGroups/Senate%20Judiciary/Bills/S.183/S.183~Pamela%20Marsh~Testimony~2-25-

2016.pdf [https://perma.cc/G4YE-YPHZ]; Permanency for Children in the Child Welfare System:

Hearing on S.183 Before House Comm. on Judiciary, 2015-2016 Bien. Sess. (Vt. Apr. 6, 2016)

(oral statement of Legislative Counsel Brynn Hare). The 2016 Act addresses permanent

guardianships—a subset of minor guardianships that can be granted only by the family division

and are distinct from the consensual and nonconsensual minor guardianships that were the subject

of the 2014 Act.3

2
The 2014 Act also changed the minor guardianship process in other significant ways,
from establishing parameters concerning DCF’s role in minor guardianship proceedings, 14 V.S.A.
§ 2634, to providing for direct appeal from minor guardianship proceedings to the Supreme Court,
id. § 2633.
3
The family division has the sole authority to establish a permanent guardianship as a
disposition alternative in a CHINS proceeding, 33 V.S.A. § 5318, or a delinquency proceeding, id.
§ 5232. See 14 V.S.A. §§ 2660-2667 (provisions related to permanent guardianships for minors).
The process and standards for terminating permanent guardianships are different from those that
apply to termination of consensual and nonconsensual minor guardianships, and custody of a child
reverts to DCF upon termination of a permanent guardianship in the absence of a successor
guardian designated in the permanent guardianship order. Compare 14 V.S.A. § 2632 (processes
for terminating consensual and nonconsensual guardianships), with id. § 2666 (process for
modifying or terminating permanent guardianship).
8
¶ 18. One goal was to make permanent guardianships “a better option for relatives or

other persons having custody under conditional custody orders” and to focus on the best interests

of the child “and make it easier to establish permanent guardianships in appropriate cases with

children under age 12.” Marsh Testimony, at 1. During a hearing before the House Judiciary

Committee, the Chief Superior Judge explained, “One of the things this bill does is speaks to the

use of permanent guardianships for minors and tries, in some respects, to expand that use as a more

viable option available to the courts in these situations.” Permanency for Children in the Child

Welfare System: Hearing on S.183 Before House Comm. on Judiciary, 2015-2016 Bien. Sess. (Vt.

Apr. 12, 2016) (statement of Chief Superior Judge Brian Grearson) [hereinafter Grearson

Testimony].

¶ 19. To that end, the 2016 Act expressly acknowledged the benefits of permanent

guardianships. In particular, the Legislature included the following purpose statement:

The creation of a permanent guardianship for minors provides the
opportunity for a child, whose circumstances make returning to the
care of the parents not reasonably possible, to be placed in a stable
and nurturing home for the duration of the child’s minority. The
creation of a permanent guardianship offers the additional benefit of
permitting continued contact between a child and the child’s parents.

2016, No. 170 (Adj. Sess.), § 1 (codified at 14 V.S.A. § 2660).

¶ 20. The 2016 Act also substantially changed the standards for establishing permanent

guardianships. The 2016 Act removed the prior statutory preference for adoption by eliminating

the requirement that the court establish a guardianship only if it found that neither reunification

nor adoption was likely within a reasonable time. Id. § 2 (codified at 14 V.S.A. § 2664(a)(2)).

The 2016 Act conformed the standards for awarding a permanent guardianship to the most

important factor for terminating parental rights—that “[n]either parent is able to assume or resume

parental duties within a reasonable time.” Id. (codified at 14 V.S.A. § 2664(a)(1)). The 2016 Act

also eliminated the requirement that a child subject to permanent guardianship be at least twelve

years old. Id. (codified at 14 V.S.A. § 2664(a)(3)). And, it reduced the amount of time a child
9
must live with a proposed permanent guardian from one year to six months. Id. (codified at 14

V.S.A. § 2664(a)(2)). Collectively, these changes increased the viability of (and legislative

support for) permanent guardianship as a disposition alternative in CHINS cases.

¶ 21. Although the Legislature eliminated the statutory preference for adoption over

permanent guardianships, it also made it clear that permanent guardianships were not a preferred

disposition option over termination of parental rights and adoption. In the purpose statement, the

Legislature stated, “The Family Division of the Superior Court is not required to address and rule

out each of the other potential disposition options once it has concluded that termination of parental

rights is in a child’s best interests.” Id. § 1 (codified at 14 V.S.A. § 2660(b)). In presenting this

purpose statement on behalf of the various stakeholders who collectively proposed the legislation,

the Chief Superior Judge explained that the purpose statement was designed to “avoid the idea of

a hierarchy” among the disposition options following initial disposition that would require a court

to consider and rule out permanent guardianship before terminating a parent’s rights. Grearson

Testimony.

B. Principles for Guardianship Proceedings

¶ 22. Three important points follow from the changes made in the 2014 and 2016 Acts.

First, the family division has a broad range of options as to timing and outcome when a minor

guardianship proceeding is transferred to the family division under 14 V.S.A. § 2624. The family

division has the discretion to determine whether and when to address the minor guardianship

petition relative to the CHINS petition. Pursuant to § 2624(b)(2)(C)(ii), the family division may

immediately transfer the minor guardianship proceeding back to the probate division for further

proceedings after the family division matter is resolved. Alternatively, it may consolidate the cases

pursuant to § 2624(b)(2)(C)(i). If it does so, it may, immediately or later, grant or deny the minor

guardianship petition pursuant to 14 V.S.A. §§ 2621-2633. If it grants the minor guardianship, it

must then transfer the case back to the probate division for monitoring. Id. § 2624(b)(2)(D). If

10
the court initially consolidates the proceedings, it may prioritize the CHINS proceeding and

subsequently transfer the minor guardianship proceeding back to the probate division pursuant to

§ 2624(b)(2)(C)(ii)—either before or after finally resolving the CHINS case.4 The court’s

discretion to establish a minor guardianship is not constrained by DCF’s determination in the

CHINS action regarding the suitability of the proposed guardian as a custodian, although the court

may consider the same factors as DCF in reaching its own determination as to whether a proposed

guardian is suitable. See id. § 2626(d) (requiring court to determine that proposed guardian is

suitable in consensual guardianship); id. § 2627(c) (requiring court to determine that proposed

guardian is suitable in nonconsensual guardianship). In some cases, the court may deny

termination of parental rights as not in the child’s best interests and instead urge DCF to prepare a

proposed case plan calling for a permanent guardianship. Whatever resolution, the court’s decision

must be internally consistent and be supported by sufficient evidence and reasoning. Second, the

law does not establish any hierarchy among the options. The family division has discretion to

choose the path most likely to promote each child’s best interests.5 The 2014 Act clarifies which

court makes the decisions when both a CHINS petition and a guardianship petition are pending

with respect to the same child, but nothing in the statute suggests that in exercising its broad

discretion the family division should prioritize one legal framework (custodial minor guardianship

versus CHINS, for example) over another. Instead, the statute leaves it to the family division to

choose among the various options available to it.

¶ 23. For example, in the context of a recently filed CHINS proceeding in which a

suitable guardian seeks a consensual minor guardianship, the court may conclude that the minor

4
The outcome of the CHINS proceeding will obviously affect what, if anything, is left to
transfer back to the probate division.
5
This reference to the child’s “best interests” as the touchstone for the family division’s
exercise of its discretion does not refer to the statutory standard in 33 V.S.A. § 5114 or 15 V.S.A.
§ 665(b), although the factors relevant to these respective best-interests analyses are likely
relevant.
11
guardianship would address the risk of harm to the child that gave rise to the CHINS petition,

would preserve the child’s relationship with family or other significant adults, could potentially

enable the child to maintain contact with parents who are not presently able to care for the child

while still promoting permanency for the child, and would leave the door open to reunification if

the parents successfully addressed the challenges that led to the CHINS petition. See 14 V.S.A.

§ 2626 (establishing process and standards for consensual guardianships in which parent or parents

consent to judgment). In this scenario, if the court granted the minor guardianship petition, the

CHINS petition would be essentially mooted.

¶ 24. Alternatively, in a relatively new CHINS proceeding, if a proposed guardian sought

to establish a nonconsensual guardianship under § 2627, the court may consolidate the

guardianship proceeding with the juvenile matter and give the parent or parents adequate time to

access the necessary services and successfully address the alleged or adjudicated parenting deficits

in the context of the CHINS case. If the parents were able to reunify, then before issuing its final

judgment in the CHINS case, the court could deny the guardianship proceeding on the basis that

the child is not “a child in need of guardianship” as defined in § 2622(2), or the court could transfer

the unadjudicated guardianship proceeding back to the probate division.. On the other hand, if it

became clear that the parents were not likely to be able to reunify, the court might revisit the

question of a nonconsensual guardianship as an alternative to a disposition in the context of the

CHINS proceeding, or, at disposition, the court might entertain a proposal for a permanent

guardianship pursuant to 14 V.S.A. §§ 2660-2667.

¶ 25. The court may make a different decision in a CHINS case where the minor child

has been living with and building attachments in a preadoptive foster family for a significant period

of time and the proposed guardian has less of a relationship with the child. The court may transfer

the guardianship petition back to the probate division for consideration after final disposition,

which may be a termination of the parents’ rights that clears the way for adoption. Alternatively,

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the court may consolidate the guardianship with the juvenile matter and consider both the State’s

petition for termination of parental rights and the minor guardianship request at the same time.

The court may also consider at disposition, pursuant to 33 V.S.A. § 5318(a)(6), a proposal for a

permanent guardianship pursuant to 14 V.S.A. §§ 2660-2667.

¶ 26. These scenarios are provided to highlight various considerations that might point

to different approaches, not to direct how a court should exercise its discretion in a particular case.

Rather than prioritize one approach over another, the Legislature gave the family division an

expansive set of tools in these CHINS/guardianship-petition cases. The touchstone for the family

division’s exercise of this broad discretion must necessarily be the well-being of the child. See 14

V.S.A. § 2626(d)(5) (requiring determination that consensual minor guardianship is in child’s best

interests); In re F.P., 164 Vt. 117, 121-22, 665 A.2d 597, 600-01 (1995) (explaining that focus of

CHINS proceeding is child’s welfare and that statute should be interpreted in light of that purpose);

see also In re Adoption of B.L.V.B., 160 Vt. 368, 371, 628 A.2d 1271, 1273 (1993) (explaining

that in context of adoption statutes, state’s primary concern is to promote welfare of children, and

application of statutes should implement that purpose).

¶ 27. Third, the family division also has an obligation to exercise the broad discretion

granted by the Legislature. See, e.g., In re T.S., 144 Vt. 592, 594, 481 A.2d 21, 22 (1984) (“To

support a claim of abuse of discretion, a party must show that the court failed to exercise its

discretion, or that its discretion was exercised for reasons clearly untenable or to an extent clearly

unreasonable.”). And the end that should drive the court’s exercise of this broad discretion is, as

noted above, the best interests of the child. As evidenced by the hypotheticals above, the court

must make an individualized determination rather than apply a blanket approach. That makes

these cases more challenging to manage. Once the guardianship petition is transferred to the family

division, at the onset of the transfer, and thereafter throughout the case, the trial court must be

mindful of the range of options on the table. It cannot as a matter of course conclude that CHINS

13
proceedings, or guardianship proceedings, will always take precedence. Instead, informed by the

arguments of the parties and its knowledge of the record, the court must conduct an individualized

assessment of the best course in a given case. And as circumstances change through the course of

a case, on its own initiative or in response to arguments by parties, the court’s approach to the

alternate paths may shift.

¶ 28. If the court proceeds to disposition or post-disposition modification in the CHINS

case, it should be mindful of the possibility that a permanent guardianship might best serve the

child’s best interests. The court is not required to conduct a thorough review of any permanent

guardianship options before granting a petition to terminate parental rights at disposition. See 14

V.S.A. § 2660(b). Nonetheless, if a permanent guardianship is proposed, the court should consider

the option, and have a case-specific reason for dismissing it as an option rather than declining to

assess the possibility as a matter of course. The Legislature’s statement in § 2660(b) that the court

need not rule out other potential disposition options in every case once it concludes that termination

of parental rights is in the child’s bests interests was not intended to diminish the Legislature’s

recognition in § 2660(a) that permanent guardianships may offer important benefits to minor

children.

C. Guardianship Request in this Case

¶ 29. In this case, after the guardianship was filed in the probate division, the judges from

both divisions conferred and held a hearing where the parties were present, including the attorneys

for father and for the paternal grandmother. The superior judge ruled that the guardianship matter

would remain under the jurisdiction of the probate division and that the family division would keep

the probate division informed on the status of the juvenile proceeding. The superior judge

indicated that while the termination petition was pending, the guardianship was basically “on

inactive status.” The probate judge agreed that the guardianship would be inactive in that court

14
pending confirmation from the family division as to whether it could be reopened or would be

rendered moot.

¶ 30. On appeal, father contends that the family division erred by essentially putting the

guardianship in the probate division on inactive status without any means to reinitiate it and

effectively giving priority to the juvenile matter. Father’s claims that the family division prevented

the probate division from having jurisdiction or improperly impeded the jurisdiction of the probate

division are without merit. The court acted in accordance with the terms of the statute.6 Because

there was a pending action in the family division involving the custody of C.B., the guardianship

was properly transferred from the probate to the family division. After consultation, the family

division transferred the guardianship matter back to the probate division to proceed after the

termination petition was resolved, one of the options available under the statute. See id.

§ 2624(b)(2)(C)(ii). The court did not impermissibly prevent the guardianship petition from

proceeding. It acted consistently with the statute and transferred the guardianship petition back to

the probate division, to be resumed after the termination petition was heard.

¶ 31. In a related argument, father asserts that the court abused its discretion because it

made a blanket decision to never consolidate a guardianship petition with a termination proceeding

instead of evaluating the question relative to the facts of this particular case. By using the language

“may,” the statute plainly gives the superior judge discretion to decide whether to consolidate the

guardianship or transfer it back to the probate division. 14 V.S.A. § 2624(b)(2)(C); In re M.S.,

2017 VT 80, ¶ 23, 205 Vt. 429, 176 A.3d 1124 (explaining that statutes are interpreted by looking

at plain meaning and use of “ ‘may’ indicates [provision in statute] is an option, but not a

requirement”). As explained in detail above, the family division has broad discretion in deciding

6
The statute provides that the family division may “consolidate the minor guardianship
case with the pending matter in the Family Division” or “transfer the guardianship petition back
to the Probate Division for further proceedings after the pending matter in the Family Division has
been adjudicated.” 14 V.S.A. § 2624(b)(2)(C)(i), (ii).
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how to proceed and an abuse of discretion is shown where the court has failed to exercise its

discretion or the “discretion was exercised for reasons clearly untenable or to an extent clearly

unreasonable.” In re D.H., 2017 VT 71, ¶ 11, 205 Vt. 281, 173 A.3d 883.

¶ 32. Here, the record demonstrates that the superior judge in the family division

understood there was discretion under the statute regarding the choices for proceeding and

exercised that discretion appropriately. The court acknowledged that the statute allows transfer to

the probate division or consolidation. The court explained that it did not deem consolidation to be

an appropriate approach in this case. The court made some general statements regarding the lack

of efficiency in general in consolidating a guardianship with a contested and complex termination

proceeding, especially where the guardianship was filed after the termination petition, and

indicated that the court would “likely” follow the practice in other cases of transferring the

guardianship back to probate. Certainly, if these statements were interpreted as predeciding future

cases, this kind of across-the-board approach would contradict the case-specific discretion granted

in 14 V.S.A. § 2624.

¶ 33. Nonetheless, the court’s statements do not indicate that it wholly failed to exercise

its discretion in this case or made a general ruling without regard to the particular facts of the case.

The court provided a rationale for its approach and acted within its discretion.7 At the outset of

the hearing, the family division noted that the juvenile case was filed in October 2017 and the

termination petition was filed in June 2019. The court explained that its decision on how to

proceed was impacted by factors such as what stage the juvenile proceeding was at when the

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Father argues that the court incorrectly thought that it lacked authority to proceed with
the guardianship petition. At the joint conference, the family division suggested that because the
child was in DCF custody, the court could not adjudicate the custodial guardianship petition. It is
true that while a CHINS case is pending, the probate division does not have jurisdiction to
adjudicate the minor guardianship petition; but it is not the case that the family division lacks such
authority. The Legislature specifically provided that after a minor guardianship proceeding is
transferred to the family division, that court may “determine whether a guardianship should be
established under this article.” 14 V.S.A. § 2624(b)(2)(C)(i). The statute does not suggest that the
court’s authority to do so turns on whether the child is in DCF custody in the CHINS proceeding.
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guardianship case was filed, the child’s age, and the length of time the child has been in custody.

The court emphasized that the focus was on the “child’s needs.” Although the court described its

rationale in general terms, its reasoning was in accordance with the facts of this case. The court

did not fail to exercise its discretion entirely and its decision in this case was reasonable in light of

the record evidence. See In re L.R.R., 143 Vt. 560, 562, 469 A.2d 1173, 1175 (1983) (“[T]his

Court, on appeal, will not set aside a discretionary ruling if there is a reasonable basis for the lower

court’s action.”).

¶ 34. Father also argues that, at the termination hearing, the court erred in considering

only the petition to terminate and not considering an alternative disposition, such as entering an

order of permanent guardianship or transferring legal custody to a relative. See 33 V.S.A.

§ 5318(a)(6), (7).

¶ 35. The Legislature has expressly indicated that the family division is not required to

rule out permanent-guardianship possibilities before terminating parental rights. 14 V.S.A.

§ 2660(b). Moreover, at the termination hearing, father testified that his family was “toxic,” and

that he did not support paternal grandmother’s guardianship petition. Therefore, father has not

preserved for appeal a challenge to the trial court’s failure to consider a disposition of permanent

guardianship with paternal grandmother. Because mother stipulated to termination of her rights

and signed a post-adoption contact agreement before the final hearing, neither parent advocated a

permanent guardianship with paternal grandmother at the time of the court’s TPR decision.

¶ 36. The critical question for the trial court at disposition was whether there was a

change in circumstances and, if so, whether termination of father’s rights was in C.B.’s best

interests. See 33 V.S.A. § 5113(b) (explaining that based on party’s motion, court can amend

existing disposition based on changed circumstances and in best interests of child). The court here

found that there was a change in circumstances due to father’s lack of progress and that termination

was in C.B.’s best interests, particularly given that father would not be able to parent C.B. within

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a reasonable period of time. See id. § 5114(a). Father does not challenge those findings or

conclusions on appeal.

IV. CHINS Merits

¶ 37. Father also contends that he was improperly denied standing at the merits stage of

the CHINS proceeding and was erroneously not granted counsel until after the initial disposition

order issued. There is no merit to father’s argument that the court failed to properly assign him an

attorney. Father was entitled to assignment of counsel. See 13 V.S.A. § 5232(3) (providing that

needy persons in juvenile proceedings are entitled to assignment of counsel “when the court deems

the interests of justice require” it); In re L.H., 2018 VT 4, ¶ 11, 206 Vt. 596, 182 A.3d 612

(recognizing that provision of counsel to parents “is required by statute and is an important part of

ensuring that termination proceedings are conducted fairly and accurately”). The fact that father

was not assigned an attorney earlier in the proceeding was due to father’s actions in failing to

request or apply for counsel earlier. The record reflects that father was entered as a party in the

proceeding in January 2018 after his parentage was established. At that time, the court sent father

a notice of the proceeding and a public-defender application. Father was also sent a copy of the

merits order and stipulation. Father did not communicate with the court or request an attorney at

that time. When the disposition order issued in March 2018, the court sent a copy to father. Father

did not submit a request for a public defender until June 2018, at which time he was immediately

assigned an attorney.

¶ 38. Father’s attempt to challenge the CHINS merits decision is an impermissible

collateral attack. The merits decision became final after the initial disposition was entered and no

appeal was filed. See 33 V.S.A. § 5315(g) (explaining that CHINS merits decision becomes final

after disposition order is issued); id. § 5318(d) (stating disposition is final order). Father cannot

now bring a collateral challenge to that final order absent a demonstration that it is void due to lack

of jurisdiction or because it was entered in a manner inconsistent with due process of law. See In

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re C.L.S., 2020 VT 1, ¶¶ 16-17, __ Vt. __, 225 A.3d 644 (“Parties are generally precluded from

collaterally attacking a final CHINS merits determination at a later stage of the proceedings.”).

Here, father’s alleged error—that mother could not stipulate to the merits of the CHINS petition

without father’s agreement—is insufficient to render the decision void.

Affirmed.

FOR THE COURT:

Chief Justice

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