Whether Vermont's parental rights termination standards violate the Fourteenth Amendment

QUESTIONS PRESENTED This case concerns the constitutionality of Vermont law governing the termination of parental rights, specifically, whether it is a violation of the Fourteenth Amendment to terminate parental rights without demonstrating a nexus between the parent’s conduct and the safety of the child. Petitioner’s infant daughter was removed from her care after Petitioner’s stepson sustained minor unexplained injuries to the side of his face while in the care of his father and Petitioner. The State never proved that Petitioner caused the child’s injuries, and there was no allegation that Petitioner abused or neglected her daughter. Petitioner substantially complied with her court-ordered plan of services, but the court terminated her parental rights anyway, finding that she had missed visits and failed to achieve a case plan goal requiring her to improve her ability to manage anger. The only evidence of Petitioner’s ongoing “anger” problems during the eleven months preceding the termination of her rights were two occasions where Petitioner yelled at or insulted other adults. Under Vermont law, the child welfare agency is empowered to remove children from their parents’ care without proving that child maltreatment occurred. The State can also terminate parental rights in these cases upon proof that the parent has “stagnated” in making progress toward case plan goals and that termination is in the child’s best interests. In other words, the government can terminate parental rights because the parent failed to adequately remedy the child protection agency’s concerns, even if the parent never harmed the child or otherwise i placed the child’s safety in serious jeopardy. This statutory scheme begs the question of exactly when, and how, the court makes a finding of parental “unfitness” by clear and convincing evidence as required by this Court’s holding in Santosky v. Kramer, 455 U.S. 745, 760, 102 S. Ct. 1388, 1398, 71 L. Ed. 2d 599 (1982). On appeal, Petitioner argued that the State failed to prove a nexus between Petitioner’s behavior and her fitness as a parent in violation of this Court’s holding in Santosky, and she objected on First Amendment grounds to the State’s reliance on two instances of protected speech as evidence that she failed to make adequate progress in learning to manage her anger. The Vermont Supreme Court affirmed the termination of Petitioner’s parental rights. The questions presented are: 1. Whether the standards that Vermont applies in termination of parental rights cases, including “best interests of the child” and “stagnation,” violate the Fourteenth Amendment because they permit termination of parental rights without proof that the parent harmed the child or placed the child at risk of serious harm. 2. Whether the State can prove parental “unfitness” by clear and convincing evidence without demonstrating a nexus between the parent’s condition or behavior and the safety of the child who is the subject of the proceeding. 3. Whether the First Amendment prohibits the termination of a parent’s rights based at least partially on the parent’s engagement in protected speech. ii