Voiceover: SJC 13178 in the matter of an impounded case.
-: Attorney Krasner.
-: Thank you very much.
May it please the court, good morning.
I'm Sherry Krasner here on behalf of mother.
Mother's argument here is very straightforward.
It gives meaning to the words,
the "standards" of section three,
as they are used in chapter 119, section 26,
and it seeks to harmonize chapter 210, and chapter 119,
and actions in probate court
and actions in the juvenile court.
The argument is not inconsistent with adoption of Cadence,
the case DCF relies on primarily in its brief,
or adoption of Jillian, the case child points to,
or adoption of Donald, an appeals court rescript case
that I proactively brought up in my principle brief.
The simple argument is this.
If DCF asks a juvenile court judge
to exercise her authority to terminate parental rights,
DCF has to have custody of the child.
Judge has wide latitude to do many things in juvenile court,
but the simple--
-: Can I stop you there, Counsel?
And just ask you to clarify what you mean by custody.
Do you mean physical custody, legal custody, or both?
-: An award of custody by the juvenile court,
the decision maker for the court, for the child.
And clearly in this case,
grandmother was the custodian of the child.
She was the one who could make decisions
about his medical care,
about the early intervention services he was receiving.
DCF could not remove the child from that home
and we know this from Care and Protection manual,
unless DCF went back into court
and asked that the child be removed.
This was not a foster care placement.
Paternal grandmother was the decision maker for this child.
-: Well, child's counsel relies
on also plain, expressed language.
It says chapter 119, section 26-4,
"A judge may dispense with the need for consent
"of any person named in section two of chapter 210
"to the adoption custody, guardianship,
"or other disposition of the child named there.
"And upon a finding that the child is in need of care
"or protection, and that the best interests of the child
"will be served by such order."
Why doesn't that provide the judge
the express authority to do what he does here?
-: Because you need to read the entire statute.
And why would the language in accordance with the standards
of section three, exhibit if it wasn't circling back.
-: The standards of section three are those,
they aren't the provision you're relying, right?
Those are the substantive standards aren't they,
for dispensing with consent to adoption, right?
-: Respectfully, no,
those are the factors in section 3C, 210, 3C.
That a judge needs to apply those 14 statutory factors.
But what I'm saying is that in the sections 3A and 3B
of section 210, talk about the department
having custody of the child before requesting
that a decree terminating, and this goes back--
-: This thing you're arguing, this one sentence,
has the potential to be, to deprive judges ability
to create a permanent solution here.
Under your proposal, these parents
who are clearly got all kinds of problems,
can continually revisit the guardianship, right?
-: No, they can-- -: They can file,
they can challenge it at any point, right?
-: If there was only a finding of the child
with need of care and protection,
and no termination of parental rights,
you are correct, Your Honor.
-: But that's what you're arguing,
you're saying that's what has to be here.
-: In this case, grandmother, the custodian of the child,
she could have filed a petition.
She could--
-: I understand she could of,
but what you're saying here is, that if she doesn't,
these parents can revisit this at any point in time
and a judge cannot correct.
Basically provide a permanent solution here,
which is against a lot of what we've said, in Nancy
and these other cases, where we want,
we want to resolve this issue.
I just, I feel like you're,
and also, but anyway, I don't.
Yeah, go ahead. -: I'm just saying
that rules and statutes and the language
and statutes exist for a reason.
-: Yeah, but that's why the language
I read you is so important
because it gives judges the ability
to make sure that parents who are,
whose rights should be terminated,
can be terminated so that they don't sit around
and undermine the system continually.
You're relying on a guardian who doesn't know anything
about, sort of the consequences of not doing this
to have to act, to prevent this.
I'm not, go ahead.
-: I'm sorry, and the guardian or the custodian
in this case, these parents,
for all their problems and my client,
I'm not going to tell you
that my client didn't have deficiencies,
but she was consistently visiting with this child
every single weekend for two, both Saturday and Sunday.
-: If this has been a normal case,
meaning the DCF had custody and brought this,
there'd be absolutely no question
that the judge would have the right
to terminate all their rights here.
They're based on the facts we've got here.
It's just be no question.
You've come up with a clever,
and I'm not saying unsubstantiated statutory interpretation,
but this would be a clear case
for termination of parental rights
and dispensing with consent to adoption.
-: But again, what the custodian
was planning on doing, what she testified
in her very brief testimony, is that if she were,
if this termination went through,
that the parents were going to continue to see the child.
She was changing it, going to change it
from every weekend to every second weekend.
And so she, this is the woman
who's been taking care of this child.
This was the woman who knows the child, knows the parents.
And she is suggesting that these parents
are not such a destabilizing force in the child's life,
that they should have no contact.
But when adoption happens, when a termination happens.
-: I just have one question for you.
If I'm the paternal grandmother, who is the custodian,
correct? -: Correct.
-: If she had asked for a termination,
you saying that it was possible for her to do that,
right? -: Correct.
-: What standards would the judge apply in that context?
Would they come from section three
or would the judge be precluded
because the motion didn't come from DCF?
-: It would be the same factors that the two petitions
would have been tried together.
There would have been a care and protection petition.
And there would have been another petition
filed by the grandmother either to adopt
or either for a guardianship and the fixed same kind
of decision that is not normal care and protection case
would have occurred.
And this is the same thing that used to happen
in the probate court--
-: I'm wondering how that's consistent with your argument.
If section three provides the factors,
even when DCF doesn't file a motion,
why can't the judge apply the factors?
Just because what you know, on under a 119?
-: Well, I'm just saying that statutory language,
it's there for a reason, it matters.
-: I understand that, but you're saying
that the standards consistent with section three
don't apply because DCF did not file a motion,
but if DCF doesn't file a motion
and instead grandmother files a motion.
You're saying those sections three factors do apply.
And I'm wondering how that's consistent.
-: Before, juvenile court judges
had the authority to terminate parental rights.
There would be a proceeding in the juvenile court.
There would be a finding that the child was in care,
in need of care and protection.
Permanent custody would be awarded to the Department.
And then the Department would go to probate court
and file a petition to dispense with consent to adoption.
And when the statutes were amended
to allow this to happen in the juvenile court,
it seems to me that the,
but what the legislators were saying
is it should happen in the same way that it happens
when it happens in probate court,
that the custodian of the child
is the one who makes the request.
And I don't see it as elevating form over substance.
It's a way to harmonize the two statutes that the person,
if DCF couldn't even remove this child
from the home without a court order,
why should DCF be the one
who is saying, "Your Honor, terminate the rights"?
There's also an argument that the DCF makes an its brief,
that if my argument were to be adopted,
that that would discourage DCF
from allowing third-party custodians
to appointments of third-party custodians.
And I would hope that this court finds
that as offensive as I do.
The third-party custodians almost always are family members
or are people that have a close, a teacher,
or a someone who has a close, personal relationship
with the child.
And they are presumably going to act
in the best interest of the child that--
-: Can I interrupt you?
Because you just said the thing that bothers me the most.
Let's just say for instance,
that the root of both of these statutes
is the best interest of the child.
This isn't a judge who hasn't any experience
with this mother and father.
In fact, there was another child,
an older child that that's part of the issue, right?
That in some ways, perhaps, maybe imported some feelings
about the other proceedings with the other trials.
So you've got this body of of experience with this family.
And why is it that if at root,
what motivates all of the judges,
either run the probate family, the juvenile court
in what is best for this child?
Why isn't this an appropriate exercise
of the judge's discretion?
You can't unsee what he already sees.
You can't un-know what he already knows.
-: I would remind this court first, respectfully,
of that wonderful footnote in adoption of Luke
although you can't ignore history
that each one of these cases has
to be judged on its own merits.
So I would say that there, there was a child, another child,
but this was a new child born several years later.
And this case--
-: They were a bunch of findings that support
why the judge did what he did specifically
with this child.
I mean, you mentioned that there was regular visits,
but there was record evidence
that the mother was nodding off.
The father was disinterested.
There were all of these things that pointed me,
I believe at some point, the paternal grandmother
said she had had enough of these two.
So again, if all of these things were happening
that were positive for this child
in the paternal grandmother's custody,
why isn't this okay?
-: In this case, adoption, the point of adoption
or point of termination is to sever all relations
between the child and the parent,
because it's in the child's best interest.
But even from that limited testimony from grandmother,
she wasn't going to sever all relations.
She was, the child was going to continue
to see his parents twice a month
for several hours each month.
And with respect to the specific findings, Your Honor,
there was five months of consistent weekend visits
without any problems.
There was one visit where mother appeared to be nodding off.
And so no evidence that she was using,
but she seemed to be tired
and grandmother terminated the visit.
There was no scene, there were no problems.
And again, my client was not indicating that this,
that she couldn't care for the child at this time.
She wasn't saying that, she knew that,
but to take such a drastic step,
both because of the statute
and also because of the specific findings
and I would direct the court to the end of my brief
and that the factual errors that the judge did make,
the clearly erroneous findings that he did make
with respect to visits.
And again, this grandmother was
offering this child permanency and stability.
That was her goal, that's what the parents wanted.
And to say that that can only be done
through a termination of parental rights is problematic.
And again, step--
-: But we're not, the judges, the question is,
the judge didn't have to do it,
but the judge decides that in the best interest
of the child, the judge doesn't think it's
in the best interest of the child to have these two parents
with all their problems, still able
to challenge the guardianship down the road
to come into court.
He's decided that it's in the best interest of the child
to terminate their rights.
That's different than that he has to,
but he's decided he that's within his power.
That's a very different thing, I don't see why that is--
-: And counsel, counsel, let me ask you another question.
I'm sorry to interrupt Justice Kafker,
but how are you confident that in all circumstances,
the guardian would be acting solely in the best interest
of the child and not in the best interests of the guardian
or the guardian's children in this case?
-: Well, if grandmother had filed an adoption petition,
there would have been an adoption home study.
So that could have revealed
if there were any concerns or any motives.
I'm not sure I fully understand the question,
but there would have been a process
to understand better about the guardian.
And it's our record here is so limited.
We don't even understand why grandmother
was seeking guardianship and not adoption.
There's that one sentence in the adoption plan,
"The plan for this child has guardianship
"with paternal grandmother," that's it.
There's so little information in this case.
I mean, from our limited testimony,
she appears to have been providing good care.
The parents wanted her to provide that care,
but we're making this consequential decision
that's going to matter for the rest of this child's life.
We don't even know that the husband who's living in the home
with the grandmother, we don't know how old he is.
We don't know his health.
And yet we do know that he is the person
who is providing the financial support for this child.
So there's so much,
I have my statutory argument that I'm making,
but also facts of this case, it just, yes,
there's some things out there that this,
these parents have problems, but we know so very,
and the judge more importantly,
the judge knew so very little
about what was going to happen to this child going forward,
that it was error for the termination decree.
-: So if you have a situation, not this case,
you have a situation where you have
the grandmother's the guardian
and the grandmother has a heart of gold
like my grandmothers.
And just wonderful.
But the grandmother have also
just the most forgiving person,
and there's always the possibility of redemption.
So she's letting in the mom and dad who
are just really not helping the child thrive.
But matter of fact, getting in the way of that.
In a way that's really serious.
Is DCF without any tools
Sherrie: Of course not Your Honor.
-: To be able to move for a care and protection
and address that issue?
-: Of course not, DCF could have removed the child
from that home, placed him in another home.
And DCF would have obtained custody
and then DCF could have petitioned for termination of rights
and could have proposed grandmother as the adoptive parent.
They could have asked the court if grandmother qualified
as a foster parent to have her be the foster parent.
-: But what if she's not the right choice, anyway,
because of her concern and empathy for her own child.
And do we have to go, what's the process,
how much delay is involved?
Because we're concerned about delay in the juvenile.
-: Absolutely, as you should be.
But in this, on a particular facts of this case,
this case had only been in the system
for seven months when the trial happened.
And I know seven months is a long time on some level,
but in terms of how other cases proceed
in the juvenile court, seven months is not that long.
And the court knows from the factors in 3C,
that it's 15 of the last 22 months.
That is the trigger that our legislators have determined.
This is when you really have to make those determinations.
So we were well before that, in this particular case.
And again, there would have been other options
for this grandmother if she wanted to adopt the child.
Again, she could have filed her own petition.
And then we would admittedly, we wouldn't be here
or possibly we wouldn't be here.
I might still be making the argument about the facts
that are supported by the record, the very slim record,
but the statutory--
-: Can I ask you one more statutory question,
which is that the statute says the child is in the care
or custody of DCF and you've addressed the custody part.
Is there anything to the "or"?
-: Right, the care, I believe that that circles back
to section 23 of 119, that are there other ways
that children get into the system
through a voluntary request by parents,
through a sua sponte order in the probate court.
-: And it's your position that this child was neither
in the care nor in the custody?
-: That is correct.
There was an ex parte hearing,
non-adversarial ex parte hearing
at the time of the child's birth.
And then at the next court hearing,
an award of third-party custody was made
to the paternal grandmother.
-: So are you saying if that, if DCF really thought
that this was the way to go,
in order to do it, they would have had
to remove the child from the grandmother's custody first
and retake custody, and then do what they did?
-: Correct, or, I mean,
we don't know, again, from this record,
if grandmother would have qualified as a foster parent,
if she met the requirements in terms of her background,
her home, the standards that DCF looks
to approve someone as a foster parent
or the child could have been placed in another home,
but still with the proposed adoptive
or guardianship resource as the paternal grandmother.
And I'm not trying to make things harder for judges
in the juvenile court, they have busy case loads.
They have a lot to do, but they have--
-: You are, you're removing their flexibility,
which we've stressed tremendously,
that they have great flexibility in the arrangements
they agree to in the best interest of the child.
And we've said that in the context,
you say Chauncey and the other cases, can't remember that,
but there are a bunch of them where we emphasize
that flexibility: Cadence, Jillian, guardianship of VV.
I mean, we've done this a bunch of times,
but you're limiting the flexibility dramatically.
-: No, I believe not Your Honor,
only in that very narrow circumstance
where a third-party custodian is the custodian of the child
and not the Department.
And I don't have the numbers for the court,
but I can tell you that we're not talking
about many, many cases.
And again, third-party custodians, as generally
as family members familiar with the child.
And the whole reason that the Department isn't required
to file those petitions for termination.
when a child is not in foster care,
we don't want children in foster care to linger,
that we all can agree upon that,
but there can be different paths
when a child is being taken care of by a family member
and not trying to prolong the process,
not trying to make the process more difficult,
but just saying it's a little different way to get
to permanency and stability for a child.
And in this case, the judge didn't have that authority
because it was one of those sort of different cases
and a DCF didn't have custody, grandmother,
the custodian, didn't file her own action,
and it should be cleaned up and it should be cleaned up
for all cases.
-: Thank you very much. -: Thank you.
-: Attorney Kernan.
-: Good morning Your Honors, may it please the court.
Jennifer Kernan for the Department of Children and Families.
The Department is asking this court to affirm the decrees
and judgments of the court below,
terminating mother and father's parental rights.
This is a case where the parents did not contest unfitness,
and the parents actually urged the court to approve the plan
of guardianship with the grandmother
and supported the child being
with the grandmother permanently.
The issue before the court is whether the judge
had authority to terminate parental rights
when the child was not in the Department's custody.
-: How do we get around the statutory language?
-: The statutory language does not preclude this scenario
from happening, specifically because this was a petition
that was filed under 119.
There is a distinction in 210-3, paragraph B
between petitions filed under 210-3,
and petitions filed under 119.
And because this was a petition filed under 119,
custody is not a requirement for, or a prerequisite, rather
for the department to seek termination of parental rights.
-: I'm confused by that because I mean,
I get why a judge should retain flexibility,
but I don't understand why you, I mean, why the Department,
once the Department is not, it doesn't have custody,
why they should be the ones driving, why they,
I mean, especially the Department has a history,
they always want to get the parents out of the way.
And I understand when they are actually have responsibility
that they can do that.
I'm confused though, when the guardian has responsibility,
why the Department should be the one pushing that.
And especially when the statute says the opposite.
To me doesn't mean that the judge can't
on his or her own do it,
but I'm perplexed why the Department should be given a right
to weigh in like this when they don't have custody.
I get it.
I'm very uncomfortable with eliminating
the judge's discretion to do it
unless the statute precludes it.
I don't see why you get to do it
when the statute says the opposite.
-: I think there are sort of two answers to that question.
First is that in adoption of Cadence,
the ability to terminate doesn't require
that anybody proposed or supported the termination
of the ultimate custody order, so that's part of the answer.
And then the second part of the answer
is that the Department is the petitioner.
The Department is the one who initiated this action.
And because it was initiated under 119,
the trial judge is afforded the full panoply of rights
or options under 119.
And that includes termination of parental rights.
And the ultimate objective is achieving permanence
for this child and that permanency is gonna be
what's in the best interest of the child.
And the Department is the agency charged
with promoting child welfare.
At this stage, at the trial stage,
the Department was still involved.
Again, the Department was a petitioner
were still involved in sort of prosecuting
this care and protection.
We have an interest in making sure that the child
has achieved stability and permanency,
and that the outcome that's achieved is in the furtherance
of the best interest of the child.
So in that regard, the Department has an interest
and is still a player in the outcome.
And that's why we, sorry, did somebody have a question?
That's why the department is able pursuant to 119
to request termination,
regardless of custody status of the child.
Additionally.
-: Can you help us, I think it would be useful
if you do a little more close reading of the texts
that the counsel for the mother relies on.
How do you make that language go away?
I'm still not sure I understand how you'd do it.
-: You don't make that language go away,
but because so there are multiple paragraphs in section B.
I think it's the first paragraph
that contains the language regarding custody
and that paragraph deals with petitions filed under 210-3,
the later paragraph deal,
I think it's a third or fourth paragraph deals
with petitions filed under 119-24.
And that's where we are with this case.
Prior to the 19th.
-: So what's the difference between those two filings?
-: So prior to the 19-- -: What's the difference
between a 119 and a 210 filing?
-: The 119 filing doesn't necessarily
start out as a request to terminate.
Prior to the 1992 amendments,
the care protection petition would be filed
in the district court or juvenile court,
seeking a temporary custody of the child
and even permanent custody.
But, before 1992, if the Department wanted to dispense
with the need for parental consent to the adoption
of the child, the Department, or whoever had care
or custody of the child needed to file a separate action
in the probate court.
And that action was filed under 210-3.
The 1992 amendments wanted to sort of streamline
that process and avoid any undue delays
when the child's best interest warrants a fair
and prompt resolution.
So because of the 1992 amendments,
the district and juvenile courts were given,
or the authority was extended to the juvenile
and district courts to make the same type of determinations
that had previously only been allowed in 210-3 petitions
without having to go file a separate petition.
And that language, the language in 119-26,
that refers back to the standards in 210-3,
sort of made everything all on a level playing field,
if you will.
So that the judge considering a 119 action
and a judge considering a 210 action,
weren't looking at different factors,
weren't looking at different things.
They were considering fitness and using the factors
in 210-3C as a guide.
So because this petition, the current petition
before the court was filed under 119-24,
custody per the statute is not required
in order for the Department to seek a termination.
And on top of that, the notice that a parent receives
when a petition under 119 as filed includes notice
that their parental rights may be terminated.
One of the things that mother mentioned
in her argument is that this would be okay,
this scenario would be okay if the guardian
had filed or had sought termination.
And mother described two separate petitions being filed,
but that's the exact thing that the legislator wanted
to avoid in making the 1992 statutory amendments
that great created or gave the juvenile district courts
that broader authority to do essentially the same thing,
what the probate court could only do
before the 1992 amendments.
Additionally, this court has stated
that the standards described in 210-3
is the best interest standard,
and in further ends of the best interest standard,
it would make sense to allow the Department
to seek termination, even if the Department
does not have custody.
And that's something.
-: Can I interrupt you chief.
I know she's the counsel's overtime, if you wouldn't mind.
So counsel, one of the things that bothers me
about this is you keep making reference
to the Department could do this,
but the Department didn't do this.
The judge did this sua sponte, right?
And I, as I understand in the record,
there's the summons to the mother.
And it includes all of the language that you just told me
that they could terminate her parental rights,
but people don't really read that.
The issue that I'm having is the mother is walking
into court, accepting her limitations
and the fact that this is the best thing is
to give paternal grandmother custody of her child,
to give that child the best opportunity to lead a good life.
That's what they walked into court to do.
And that's not what happened.
Because in there, there has to be baked in the hope
that perhaps she can get a hold of some
of her substance use disorders
and some of the other things that maybe are keeping her
from being the mother that perhaps she'd like to be;
that there's still the hope that you could do that.
And shouldn't we hope for that?
Isn't that something that the Department
wants to see happen?
And how could that happen if you go in hoping
that paternal grandmother is given
a permanent legal guardianship,
but you walk out saying,
"I have no longer any parental rights."
-: I have three points to make in response to that question.
If I may continue, I know my time is over.
The first, it was not a sua sponte termination.
The Department did file a notice of intent,
basically putting people on notice that we,
the Department, was seeking termination.
And second, Your Honor has reference to the fact
that the parents walked in here, but they actually didn't.
They didn't appear at the trial dates, either trial date,
and they didn't appear at some of the previous court dates.
Third, Your Honor mentioned giving the parents a chance,
giving the parents some hope.
And yes, it would be ideal if the parents were able
to sort of conquer their shortcomings.
And that's what engagement with the Department
is designed to do, the Department
creates these service plans as guides
to help the parents overcome their parental deficits.
However here, mother did not, neither parent engage
with the Department in any way whatsoever.
And this is not the mother's first engagement
with the court and with the Department.
And if there is going to be hope
that the parent might become fit,
it has to be more than a faint hope,
more than just a mere hope.
And that hope can not be at the expense
of the child's permanency and stability.
And for those reasons, the Department requests
that this court affirm the judgment
and decrees of the lower court.
-: Thank you very much.
Attorney Taylor.
-: Yes, good morning, Susan Taylor, for the appellee child.
The appellee child supports the affirming
of the trial courts termination of parental rights
in this case (coughs) excuse me.
I think it's important to know that my client came into care
when he was a newborn in the hospital,
he had been drug exposed and there was
a care and protection that was filed
in the Fall River juvenile court.
And the parties to that particular action
were the Department, the mother, the father, and the child,
all of those parties were represented by counsel.
And at the 72 hour hearing, there was an agreement,
a stipulation, that the third party custody
would go to the grandmother.
And I think it's important to realize that
that custody is not a permanent custody.
It's a temporary order made by the trial court.
The fact that they entered into the stipulation
didn't render the care and protection moot.
It was an ongoing petition.
So it's at that point, it's not as if
because the grandmother had custody
that the Department was no longer a party,
they weren't stricken from the action
and the grandmother is not added as a party to the action.
So basically you have a temporary order of custody
and it's conditional custody,
it's custody that requires the grandmother to act
with the cooperation and under the supervision
of the Department of Child and Family.
Now, when the case ultimately,
and it should be pointed out too,
that although grandmother had a right to come
to the trial and basically testify
about the progress of the child in her care,
she didn't have the final say.
So when the case came to trial,
when it was on for the hearing of the merits,
and this is some seven months later,
and during those seven months, the parents don't participate
in any kind of action or service plan,
which would have basically alleviated the concerns
to which the child was originally brought to the attention
of the court, the mental health concerns,
the addiction concerns, the whole, there were, it was,
concerns that had not only for this child,
but for another child that rights as to that child
had been terminated.
So when the case comes to trial,
and there's a hearing on the merits,
a trial that not only did mother and father not appear,
but mother's counsel stipulated
that mother was unfit and advocated to the court,
that the court should adopt the permanency plan
of permanency through guardianship.
At that point, the court had the authority
to evaluate number one, whether or not the parents were fit
and was the termination, and nowhere in any of the statutes,
does it ever talk about the termination of parental rights.
They referred to it as
"dispensing with parental consent for adoption."
So in this particular case,
the trial judge determines number one, that mother is unfit.
And two, that it's in the best interest of the child,
that he be placed permanently with this guardian
and that parental rights be terminated.
And he expressly says that he has concerns
that these particular,
he doesn't want these particular parents
to be able to continually reenter this child's life.
These decisions should now.
And it's at that point that the case is concluded.
-: Can I ask Ms. Taylor, 'cause I get all of that.
Can you help us just with the pure statutory,
the sentence that Ms. Krasner is focused on?
Can you help us understand?
'Cause I understood the Attorney General's office,
but I'll be honest, if you could simplify it a little,
it'll be useful for me.
-: I would suggest that and I have the way
that I look at it is: up until 1992, only the probate court
had the authority to terminate parental rights.
And you could have say a collateral or ancillary care
and protection that took place in the juvenile court.
But at that time, the juvenile court was not empowered
to terminate parental rights.
So they could come in into the probate court under 210,
and they would call it "doing a 210"
in order to terminate parental rights.
But when the statute was amended in 1992, at that point,
the juvenile court under 119 section 26,
empowered the juvenile judge to make that.
And what's particularly important is even if the Department
had not moved to terminate parental rights in this case,
the court could have done it sua sponte
under the statute, under the express language
of the statute, as well as under the case.
I think it's adoption of Donald that talks about that.
In this case.
-: Ms. Taylor though, over here, I understand your argument
as to what determination was made.
And I understand your answer
to Justice Kafker's question about the legislative intent,
but if we can just go to the actual language of 3B,
because we need to look at what language we're applying
that legislative intent to.
So if I could just ask the same question just as Kafker had,
could you point to why the language in 3B
does not mean that if the child is in not in DCF custody,
they can't be the petitioner?
-: What I would suggest to the court is that the language,
the reference to 210 section three is basically a relic
of the fact that those substantive,
those were the substantive considerations
that a judge would have to consider in order to dispense
with parental consent for adoption.
I don't think that the two statutes
read side-by-side conflict,
because the plain language of chapter 119
empowers the juvenile court to take that step.
And the judge in this particular case,
that was the only issue in this case
and the trial counsel for mother teed this up
exactly that way.
And the trial judge in this case said,
I understand all that, but under chapter 119,
I am empowered to determine whether the parents are unfit
and whether the child's best interest is served
by termination and adoption and/or guardianship.
The judge expressly says that
I am empowered under the statute.
So it's the fact that the Department is involved.
I mean, they are, when at the temporary custody hearing,
where there is a stipulation
and the stipulation is in volume one
of the appellant's exhibits and it's at page 80.
And if you look at that, all of those,
the court didn't give grandmother "custody",
he gave her conditional custody
as a temporary order while this case was pending.
And at the given these circumstances, I mean,
all of the circumstances in this case,
on behalf of my client who is now two and a half years old,
he is entitled to permanency.
He's been with his grandmother through, for his entire life.
The parents have never established
that they would ever be fit.
And the judge did the appropriate thing
in terminating parental rights
and creating a guardianship with the grandmother.