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.


                                          2017 VT 71

                                          No. 2017-031

In re D.H. & S.C., Juveniles                                   Supreme Court

                                                               On Appeal from
                                                               Superior Court, Windham Unit,
                                                               Family Division

                                                               July Term, 2017


Katherine A. Hayes, J.

Michael Rose, St. Albans, for Appellant Mother.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier,
 for Appellees Juveniles.

Thomas J. Donovan, Jr., Attorney General, Benjamin Battles, Solicitor General, Montpelier, and
 Jody A. Racht, Assistant Attorney General, Waterbury, for Appellee State.

Nancy Breiden, Vermont Legal Aid, Inc., Rutland, and Barbara Prine and Rachel Seelig,
 Vermont Legal Aid, Inc., Burlington, for Amicus Curiae Disability Law Project.


PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Teachout, Supr. J.,
         Specially Assigned


       ¶ 1.    EATON, J. Mother appeals the termination of her parental rights to D.H., born in

2004, and S.C., born in 2006. She argues that the family court improperly withheld its discretion

by refusing to grant a thirty-minute continuance so that she could attend the termination hearing.

We agree and reverse.

       ¶ 2.    In December 2013, the Department for Children and Families (DCF) took D.H. and

S.C. into emergency custody after mother arrived at a DCF meeting visibly impaired, having
driven to the meeting with the children in the car. The purpose of the meeting was to investigate

allegations that mother’s husband had struck D.H. and broken his wrist while the family lived in

New Hampshire.1 The family had moved to Vermont approximately one month earlier, but the

children had not been enrolled in school.

       ¶ 3.    In April 2014, the parties stipulated that D.H. and S.C. were children in need of

care or supervision. In May 2014, the court approved a disposition case plan with concurrent goals

of reunification with mother or adoption. Mother engaged in substance abuse treatment and found

stable housing with husband, in accordance with the case plan. By October 2015, both children

had been placed with mother and husband at their residence. However, in December 2015,

husband allegedly restrained D.H. during an argument to the point that D.H. had difficulty

breathing. The day before, mother was denied take-home methadone because she had a positive

drug screen. DCF removed both children from mother’s care. They have remained in foster care

since December 2015. D.H. is now thirteen years old and S.C. is eleven.

       ¶ 4.    DCF filed a termination petition in May 2016. On May 23, 2016, the family court

sent notice to mother by first-class mail that a three-day termination hearing was set for October

24, 25, and 26, 2016. The notice stated that failure to appear without good cause would cause the

court to consider the evidence of record and could result in an immediate order of termination. A

status conference was held on September 29, 2016, which mother attended. The court began the

conference by stating that “there is a termination of parental rights hearing scheduled for October

24th through 26th.”

       ¶ 5.    When the termination hearing began at 9:12 a.m. on October 24, mother was not in

the courtroom. Mother’s attorney did not know where mother was, but stated she was confident


       1
           Mother’s husband is not the biological father of either D.H. or S.C. D.H.’s father is
deceased. S.C.’s father had not been involved in S.C.’s life for several years and did not appear
for any of the proceedings below. He did not appeal the court’s order terminating his parental
rights to S.C.
                                               2
mother knew about the hearing. DCF’s attorney noted that mother had been at prior hearings and

had been told the date of the termination hearing. The court agreed and stated that “the notices are

very, very clear that failure to appear could result in a default—not a default, but in a judgment

being issued on documentation. Is that your request?” DCF’s attorney requested that the court

decide the matter based on written evidence. The court then admitted DCF’s exhibits without

objection.

       ¶ 6.    The court suggested that DCF submit proposed findings based on the exhibits and

that an order be issued based on that documentation. DCF’s attorney agreed. When asked by the

court to respond to the proposed procedure, children’s attorney stated that she had been “struggling

with this because [mother] has been at everything.” The court agreed that it was “not the most

straightforward case,” but stated that “[t]his kind of seems like maybe what has happened is that

mom has given up.” Children’s attorney noted that mother and her husband had separated and that

mother had lost her housing and was living with family members.

       ¶ 7.    The court then granted a fifteen-minute recess during which mother’s attorney

unsuccessfully attempted to contact mother by phone. Following the recess, children’s attorney

requested that the court take testimony from a DCF caseworker to update the exhibits, and then to

decide the petition based on the documentation. The court asked mother’s attorney if she objected,

and mother’s attorney responded, “Well, I guess, I feel the need to preserve the mother’s rights

here, and I just don’t think I’m willing to stipulate, but I understand where we’re at.” The court

proceeded to hear brief testimony from the DCF caseworker. The caseworker stated that mother

had revoked her releases, so DCF was unable to learn whether mother had been seeing her

treatment providers. She also testified that mother was very well-bonded with the children, had

consistently attended weekly visits, and generally behaved appropriately and met the children’s

needs during visits.



                                                 3
       ¶ 8.    After the caseworker finished testifying, mother’s attorney noticed that she had

missed a telephone call from mother, and the court granted a brief recess for her to return the call.

Mother’s attorney reported to the court that mother claimed she didn’t realize the hearing was that

morning, that mother was nearby in Townshend, and that she could be at the court in half an hour.

Mother’s attorney stated that mother sounded quite upset and wanted to be at the hearing. The

court found that mother had not shown good cause for her absence, and declined to delay the

hearing. The court stated:

               I’m not going to defer, I’m not going to call things off. Frankly,
               having reviewed the file, if we were going to have the contested
               hearing, I expect it would be more than three days that would be
               required. I was a little concerned, and we’re now an hour plus into
               the hearing time that was set aside.

The hearing concluded at 10:09 a.m., less than an hour after it started.

       ¶ 9.    Mother’s attorney subsequently filed a motion to reopen the evidence, which stated

that mother was confused about the date because a DCF worker had told her that the hearing was

Wednesday, Thursday, and Friday, when it actually was scheduled to begin on Monday. The court

denied the motion. DCF then submitted proposed findings of fact and conclusions of law. Mother

filed an objection in which she asserted that she had diabetes, which could produce false positive

tests for alcohol, and that she had intended to present evidence on this condition at the merits

hearing. Mother stated that she was not present for the incident involving her husband and D.H.,

and that any concerns about D.H.’s safety should be alleviated by the fact that mother and her

husband had ended their relationship and husband had moved to Tennessee. She stated that she

was ready and able to resume parenting her children.

       ¶ 10.   On December 22, 2016, the court granted the termination petition in a written

decision. The court stated in its decision that “mother’s failure to appear was additional evidence

in support of the State’s requested relief, as it was a stark example of an inability to organize her



                                                 4
own life and to attend to important matters, even those most likely to have significant impacts on

her and her children’s lives.”

       ¶ 11.   On appeal, mother argues that the family court erred by refusing to grant her request

to recess for thirty minutes so she could attend. Whether to grant a motion to continue is a decision

that falls within the trial court’s discretion. State v. Ahearn, 137 Vt. 253, 267, 403 A.2d 696, 705

(1979). To support a claim of error, the 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. Id. Although this case involved a request for thirty-minute recess within a

scheduled hearing rather than a request to reschedule to a later date, the same standard applies.

       ¶ 12.   We agree with mother that the unique circumstances of this case warrant reversal.

See State v. Hanlon, 164 Vt. 125, 128, 665 A.2d 603, 605 (1995) (explaining that “motion to

continue must be decided on the particular facts and circumstances of each individual case”). It

was early in the morning of the first day of the termination hearing when mother asked the court

to break for thirty minutes for mother to attend. The hearing was scheduled to last three full days.

In fact, the court anticipated that it would take even longer. Although mother’s absence was her

mistake in light of the proper notice she was given, her attorney had spoken with her and

represented to the court that mother could be there in a short time. Delaying the hearing for a brief

time to allow mother to appear would not have disrupted the court’s calendar or prejudiced the

children, DCF, or other litigants.

       ¶ 13.   By contrast, denying the request had a harsh effect on mother because it resulted in

the case being decided based on the exhibits and testimony presented by DCF, but without

mother’s testimony.2 This deprived mother of the opportunity to testify regarding her participation


       2
         Mother argues that the family court’s action deprived her of the right to cross-examine
DCF’s witnesses. This argument is without merit, as mother’s attorney was present and did in fact
cross-examine the DCF caseworker.

                                                  5
in treatment, her progress toward the case plan goals, and her strong relationship with the

children—evidence that the family court did not have before it when it rendered its decision.

Instead, the court explicitly relied on mother’s absence as evidence supporting termination, even

though mother’s attorney had informed the court that she was in touch with mother and requested

the continuance while the hearing was still in progress.

       ¶ 14.   Furthermore, the record shows that mother was actively involved throughout the

proceedings below. Mother attended fifteen of the seventeen previous court hearings in the case.3

She participated frequently and appropriately during these hearings. Children’s attorney drew

attention to this fact at the termination hearing and indicated that she was reluctant to proceed

without mother in view of the fact that mother “has been at everything.” Similarly, the DCF

caseworker testified that mother had consistently attended visits with the children and was well-

bonded with them. Mother had recently filed a motion for increased visitation. This was not a

case where the parent demonstrated a complete lack of interest or involvement in the proceedings.

Cf. In re X.L., No. 2011-353, 2012 WL 1293536, at *2-3 (Vt. March 15, 2012) (unpub. mem.),

https://www.vermontjudiciary.org/sites/default/files/documents/eo11-353.pdf (holding court did

not err by proceeding with contested TPR hearing in mother’s absence; mother had stopped

participating in case plan, failed to notify court of change in her address, and did not ask the court

to reopen evidence or show what evidence she would have submitted).

       ¶ 15.   In a termination of parental rights proceeding, “all the parties involved are to be

accorded a fair hearing, and their constitutional and other legal rights recognized and enforced.”

In re R.B., 152 Vt. 415, 421, 566 A.2d 1310, 1313 (1989) (quotation omitted). Given that mother’s

fundamental right to be a parent was at stake, under the facts of this case it was unreasonable for

the court to deny her request for a brief recess so she could attend and proceed with the contested


       3
         One of the hearings she did not attend was continued at DCF’s request, in part due to
mother’s absence.
                                              6
hearing. See Land Fin. Corp. v. St. Johnsbury Wiring Co., 100 Vt. 328, 328, 137 A. 324, 326

(1927) (holding that refusal to grant continuance during trial was abuse of discretion because

plaintiff was prevented from presenting key part of its case).4

       ¶ 16.   For these reasons, we reverse the court’s decision to terminate mother’s parental

rights, and remand the matter to the family court for the evidence to be reopened so that mother

may have an opportunity to participate. The exhibits and testimony previously admitted by the

court remain in evidence. The court may consider this evidence as well as any additional evidence

presented on remand.

       The decision of the family court terminating father’s parental rights to S.C. is affirmed.
The decision terminating mother’s parental rights is reversed, and the case is remanded for further
proceedings consistent with this opinion.

                                                FOR THE COURT:



                                                Associate Justice




       4
         Because these circumstances alone warrant reversal, we find it unnecessary to address
the remaining arguments raised by mother and juveniles.
                                              7
