In re A.S.

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 91-193


In re A.S. & J.S., Juveniles                 Supreme Court

                                             On Appeal from
                                             Caledonia Family Court

                                             September Term, 1991


Dean B. Pineles, J.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane,
  Assistant Attorney General, and Keith Aten, Law Clerk (On the Brief),
  Waterbury, for plaintiff-appellee

Carlyle Shepperson, West Corinth, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ.


     ALLEN, C.J.   The mother of A.S. and J.S. appeals from a decision of
the Caledonia Family Court terminating her residual parental rights.  We
affirm.
     The facts are essentially the same as those recited in a matter
involving the same mother and the same children, In re A.S. & J.S., 152 Vt.
487, 567 A.2d 1139 (1989) cert. denied sub nom. Appleby v. Young, 110 S. Ct. 1151, ___ U.S. ___ (1990).  The state took custody of the two children on
September 22, 1984, when appellant abandoned both boys and their siblings in
the aftermath of a violent domestic quarrel with a man with whom she had
been living.  On September 24, 1984 a temporary detention hearing was held
and custody was continued with Social and Rehabilitation Services (SRS).  At
the merits hearing on June 3, 1985, all parties stipulated that A.S. and
J.S. were children in need of care and supervision pursuant to 33 V.S.A. {
654(a).  The disposition hearing was held on July 2, 1985.  Since that
disposition hearing, the children have remained in foster care under the
aegis of SRS.  No written disposition order was ever entered.  The action
actually taken at the disposition hearing was disputed.  On December 1,
1987, appellant filed a petition for habeas corpus in superior court.  She
claimed  that placing the children in SRS custody was unlawful because the
disposition hearing mandated by 33 V.S.A. { 656 had never been held.
Appellant based this claim on the fact that no written order was ever filed
by the juvenile court.  The court denied the petition, stating:

            It's the conclusion of the Court that the disposition
          hearing was held, that an agreement was reached in it,
          that Plaintiff here today was party to that agreement,
          that the Court accepted the agreement and directed that
          an order be drafted to carry it out.
          . . . .

            So we have a hearing, we have an agreement, we have a
          direction to reduce the agreement to paper, we have the
          implementation of the agreement consistent with the
          Court's intent; and the Court thinks that the spirit and
          meaning of the statute has been carried out, and that
          there is no just grounds for the granting of the peti-
          tion for the writ of habeas corpus.
     In affirming the trial court decision, we held that the absence of any
pleading or proof on the issue of whether a return of custody to the mother
would be in the best interests of the children was fatal to the grant of the
petition.  152 Vt. at 491, 567 A.2d  at 1141.  We also held that habeas
corpus is not available as a means of collateral attack to correct any error
in a juvenile proceeding.  Id. at 492, 567 A.2d  at 1142.  The defect must be
"jurisdictional," so that any resultant order is void.  Id.  We specifically
held that the defect alleged in that case was not jurisdictional, and
stated:
         The transcript indicates that the parties believed that
         they had reached agreement on a disposition order.  The
         court indicated that it accepted the stipulation and
         would sign a written order based on it.  If petitioner
         had thereafter decided that she could not agree to the
         stipulation, she could have returned to the juvenile
         court for relief, including a full disposition hearing
         if the court found the stipulation was not binding on
         her.  When she realized there was no signed stipulation
         and written order, she was free to return to juvenile
         court for the same kind of relief.  We believe it would
         be inappropriate to allow petitioner to sleep on her
         rights for two and one-half years and then gain custody
         of her children through habeas corpus without going back
         to the juvenile court.

Id. at 492-93, 567 A.2d  at 1142.
     On December 18, 1990 the matter came before the family court for
eighteen-month dispositional review, pursuant to 33 V.S.A. { 5531(a), and
SRS recommended to the court that the mother's residual parental rights to
the boys be terminated pursuant to { 5528(a)(3)).  The court heard evidence
on February 8, 1991.  Appellant did not testify or attend, although she was
notified of the hearing.  The juvenile court found that appellant had not
had contact with the boys for three years and had "virtually abandoned"
them.  It ruled that given the boys' ages, the length of time that they had
spent in foster care, and the length of time that had elapsed since their
mother had had any contact with them, there had been a substantial change in
material circumstances and there was no likelihood that appellant would be
able to resume her parental duties within a reasonable period of time.  The
court ordered her residual parental rights terminated, and the present
appeal followed.
     Appellant's arguments here restate a proposition which is identical to
the contention raised in In re A.S. & J.S., namely, that the family court
had no jurisdiction of A.S. and J.S. because of the absence of a disposition
order in the 1985 proceeding.  Collateral estoppel bars the present action
because the question of the lawfulness and propriety of the 1985 disposition
order was "necessarily and essentially determined" in the earlier action.
See Berisha v. Hardy, 144 Vt. 136, 138, 474 A.2d 90, 91 (1984).  The mother
has not presented evidence to meet an overwhelming case by SRS on the issue
of termination.  She points only to alleged procedural defects long ago laid
to rest.
     Affirmed.

                                        FOR THE COURT:




                                        Chief Justice