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 

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before this opinion goes to press.

2021 VT 89

No. 2021-106

In re Guardianship of S.O. Supreme Court

(L.O. and T.O., Appellants)

On Appeal from

Superior Court, Bennington Unit,

Probate Division

September Term, 2021

D. Justine Scanlon, J.

Sarah Star, P.C., Middlebury, for Petitioners-Appellants.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jody A. Racht, Assistant Attorney

 General, Waterbury, for Respondent-Appellee Department for Children and Families.

PRESENT: Reiber, C.J., Robinson,

1 Eaton, Carroll and Cohen, JJ.

¶ 1. COHEN, J. Grandparents appeal from the probate division’s dismissal of their 

petition for guardianship of S.O. They argue that: the court should have held a hearing and 

addressed the merits of their petition; the Department for Children and Families (DCF) violated 

their due process rights by moving to dismiss the petition; and if there had been a merits hearing, 

they would have shown that they were suitable guardians and that a nonconsensual custodial 

guardianship was in S.O.’s best interests. We affirm.

1

 Justice Robinson was present for oral argument but did not participate in this decision. 
2

¶ 2. The record indicates the following. S.O. was born in July 2018 and she was taken 

into DCF custody shortly thereafter. S.O. has been in the same foster home essentially since birth. 

On October 21, 2020, S.O.’s biological mother voluntarily relinquished her residual parental rights

in S.O., subject to a post-adoption contact agreement. Mother agreed that it was in S.O.’s best 

interests that her rights be terminated, that S.O. be freed for adoption, and that legal custody and 

all residual parental rights be transferred to DCF without limitation as to adoption. The court 

terminated father’s residual parental rights the same day. Neither parent appealed from these 

decisions, and the orders became final on November 20, 2020. 

¶ 3. Meanwhile, on October 15, 2020, grandparents filed materials in the probate 

division seeking a minor custodial guardianship of S.O under 14 V.S.A. § 2623. They alleged that 

one or more of S.O.’s parents were incompetent or unsuitable to have custody; mother consented 

to the guardianship; and grandparents indicated that father’s position was unknown. See 14 V.S.A. 

§ 2622(2)(A)(ii) (defining “[c]hild in need of guardianship” in relevant part as “child who the 

parties consent 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”). Grandparents noted 

that S.O. was in DCF custody and that a termination-of-parental-rights hearing was scheduled for 

October 21, 2021. The probate-division clerk directed grandparents to file other necessary 

materials, which they did on October 29, 2020. Grandparents did not file a certificate of service 

until November 13, 2020; DCF indicated it was served with a copy of the petition on November 

9, 2020. 

¶ 4. Upon receiving the petition, DCF filed a motion in the family division asking it to 

confer with the probate division regarding jurisdiction over the guardianship petition. See 14 

V.S.A. § 2624(b)(1)(A) (requiring that “custodial minor guardianship proceeding brought in the 

Probate Division” be transferred to “Family Division if there is an open proceeding in the Family 

Division involving custody of the same child who is the subject of the guardianship proceeding in 
3

the Probate Division.”); id. § 2624(b)(2)(A) (providing that, when transfer of guardianship petition 

to family division occurs under § 2624(b)(1)(A), probate and family division judges must “confer 

regarding jurisdiction over the proceeding”). The family division indicated that it would do so. 

Grandparents, through counsel, then filed a motion several days thereafter asking the probate 

division to consolidate the guardianship petition with the pending family division case. 

¶ 5. The family and probate division judges conferred on the record on December 1, 

2020, and the family division judge issued an entry order that day recounting what was decided. 

As set forth in the order, the probate division judge would transfer the guardianship petition to the 

family division as required by statute and, exercising its discretion, the family division judge would

transfer the petition back to the probate division for further proceedings after the pending matter 

in the family division was adjudicated. See id. § 2624(b)(2)(C)(ii) (authorizing this course of 

action). The family division judge found that this approach served S.O.’s best interests and welfare 

as it provided the clearest path to achieving permanency with the goal of adoption. The probate 

division issued a similar order summarizing the conference on December 2. 

¶ 6. On December 8, grandparents requested a status conference. They asked the family 

division to allow them to present evidence and argument on why the guardianship petition should 

be consolidated with the juvenile proceeding, and they asserted that S.O.’s best interests required 

considering them as a permanency placement option.

¶ 7. Two days later, the family division issued an entry order transferring the 

guardianship petition back to the probate division. It recounted the procedural history of this case 

and the juvenile proceedings. It found that S.O. had been with her current foster parents essentially 

since birth and that she loved and was bonded with her foster parents. The family division judge

determined that S.O.’s best interests were not served by consolidating the guardianship petition 

with the family proceeding and determining if a guardianship should be established. It cited In re 

C.B. in support of its conclusion. See 2020 VT 80, ¶ 25, __ Vt. __, 249 A.3d 1281 (recognizing 
4

that in determining how to address transferred guardianship petition and assess what course of 

action serves child’s best interests, family division may consider whether “the minor child has 

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

time and [whether] the proposed guardian has less of a relationship with the child,” and “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 clear the way for adoption.”). 

In transferring the petition back to the probate division pursuant to 14 V.S.A. § 2624(b)(2)(C)(ii), 

the family division provided copies of its orders concerning the termination of parents’ rights. 

¶ 8. The probate division then scheduled a February 2021 hearing on grandparents’ 

guardianship petition. DCF moved to dismiss the petition, arguing that grandparents’ request 

could not be fulfilled because it did not fit within either type of guardianship over which the 

probate division had jurisdiction. DCF explained that 14 V.S.A. § 2626 required parental consent 

to a guardianship and parents no longer had the right to consent as their residual parental rights 

had been terminated. It asserted that § 2627 allowed for consideration of a nonconsensual 

guardianship only in situations in which a parent had not lost residual parental rights and a child 

needed a guardian because of parental abandonment, abuse, or neglect, and it maintained that those 

circumstances were clearly not present here. DCF thus argued that the guardianship petition 

should be dismissed without a hearing on the merits. 

¶ 9. Grandparents opposed the motion. They argued that the probate division should 

decide their petition because it remained pending and S.O. had not yet been adopted. They 

maintained that S.O. was still “a child in need of guardianship” as defined in 14 V.S.A. § 2622(B) 

because she was abused or neglected by her parents and was now “a ward of the State.” 

Grandparents further asserted that mother’s consent to the guardianship petition remained valid 

because mother consented before her residual parental rights were terminated; they argued that 

father “did not oppose” the guardianship petition. According to grandparents, the only question 
5

for the probate division was “whether the guardians [were] suitable, and whether the guardianship 

[was] in [S.O.]’s best interests.” 

¶ 10. The probate division granted DCF’s motion to dismiss. It explained that at the time 

the guardianship petition was transferred back to the probate division, both parents’ residual rights 

had been terminated, no appeals had been taken, and all residual parental rights had been 

transferred to DCF. The court was unpersuaded by grandparents’ argument that S.O. remained in 

need of guardianship under § 2622(2). It found that neither parent was a “custodial parent” as 

defined by § 2622(3) at the time the guardianship petition was filed because neither was providing 

routine daily care and control of S.O. It further found that mother’s consent to a guardianship was 

mooted by the termination of her residual parental rights and that father’s failure to object to the 

petition was not the equivalent of consent. The court added that under § 2626(b), a consensual 

custodial guardianship required the parties to enter into a written agreement, which the court would 

be required to approve at a hearing on the petition, addressing the responsibilities of the guardians 

and the parents, the expected duration of the guardianship, parent-child contact, and parental 

involvement in decision-making. There could be no such agreement here because parents no 

longer had any parental rights or authority to agree to the terms required by statute or to enter into 

such an agreement. 

¶ 11. The court recognized our recent decisions discussing in detail the array of options 

available to the family division when a minor guardianship is transferred from the probate division,

and it cited our observation that “[t]he outcome of a CHINS proceeding will obviously affect what, 

if anything, is left to transfer back to the probate division.” In re C.B., 2020 VT 80, ¶ 22 n.4. 

Given that parents’ rights had been terminated and all residual parental rights had been transferred 

to DCF without limitation to adoption, the court found that there was no relief it could grant to 

grandparents and it dismissed their guardianship petition. This appeal followed. 
6

¶ 12. Grandparents argue on appeal that the probate division should have addressed the 

merits of their petition because S.O. remained in need of a guardianship. They no longer appear 

to argue that they satisfy the criteria for a consensual guardianship. Instead, they contend that the 

probate division could have established a nonconsensual guardianship. They reiterate their 

argument that S.O. is a “[c]hild in need of a guardianship” because she is “[a] child who is 

abandoned or abused by [her] parents” and/or is “without proper parental care, subsistence, 

education, medical, or other care necessary for [her] well-being.” 14 V.S.A. § 2622(2)(B)(i), (ii). 

Grandparents maintain that S.O. satisfied this definition when she was taken into DCF custody 

and that she remains an abused and neglected child in need of a guardianship to some undefined 

point. 

¶ 13. This appeal presents questions of law, which we review de novo. Geraw v. Geraw, 

2021 VT 45, ¶ 23, __ Vt. __, 257 A.3d 847. In construing the guardianship statutes at issue, we 

seek to implement legislative intent. In re Mountain Top Inn & Resort, 2020 VT 57, ¶ 27, __ Vt. 

__, 238 A.3d 637 (quotation omitted). “Where the Legislature’s intent can be ascertained from 

the plain meaning of the statute, we interpret the statute according to the words the Legislature 

used.” Herald Ass’n., Inc. v. Dean, 174 Vt. 350, 355, 816 A.2d 469, 474 (2002). As set forth 

below, we conclude as a matter of law that grandparents are not entitled to a consensual or 

nonconsensual guardianship under the plain language of 14 V.S.A. §§ 2626 and 2627. The probate 

division therefore properly granted DCF’s motion to dismiss. 

¶ 14. We begin with an overview of the purpose and policies underlying the minor 

guardianships at issue in this case.

2

 The Legislature has indicated that, while “[i]t is presumed that 

2

 We are not here concerned with the establishment of a permanent guardianship for minors 

governed by 14 V.S.A. §§ 2661-2667. The family division, not the probate division, has the “sole 

authority” to establish this type of guardianship, In re C.B., 2020 VT 80, ¶ 17 n.3, and it did not 

do so here. See also 14 V.S.A. § 2664(a) (authorizing family division to establish permanent 

guardianship); 33 V.S.A. § 5318(a)(6) (providing that, “[a]t disposition, the [family division] shall 

make such orders related to legal custody for a child who has been found to be in need of care and 
7

the interests of minor children are best promoted in the child’s own home,” “guardianship provides 

a process through which parents can arrange for family members or other parties to care for [their] 

children” when parents are “temporarily unable” to do so. 14 V.S.A. § 2621(1) (stating that Article 

1, “Guardians of Minors,” which governs establishment of consensual and nonconsensual minor 

guardianships, “shall be construed in accordance” with this and other stated purposes of Act). 

“Decisions about raising a child made by a person other than the child’s parent should be based on 

the informed consent of the parties.” Id. § 2621(3). “When the informed consent of the parents 

cannot be obtained, parents have a fundamental liberty interest in raising their children unless a 

proposed guardian can show parental unsuitability by clear and convincing evidence.” Id. 

§ 2621(4). 

¶ 15. For consensual guardianships, parents and proposed guardians must submit an 

agreement that addresses the division of responsibilities between parents and guardians, the 

“expected duration of the guardianship, if known,” “parent-child contact and parental involvement 

in decision making.” Id. § 2626(b)(3), (4); see also id. § 2621(6) (“It is in the interests of all 

parties, including the children, that parents and proposed guardians have a shared understanding 

about the length of time that they expect the guardianship to last, the circumstances under which 

the parents will resume care for their children, and the nature of the supports and services that are 

available to assist them.”). If the probate division grants a petition for guardianship, its order must 

address: a guardian’s powers and duties consistent with those identified in id. § 2629; “the 

expected duration of the guardianship, if known;” a “family plan” that is “consistent with the 

parties’ agreement” for consensual guardianships or that includes “at a minimum, provisions that 

address parent-child contact” for nonconsensual guardianships; and “the process for reviewing the 

order.” Id. § 2628(b)(1)-(4). Recognizing the temporary nature of these types of guardianships, 

supervision as the court determines are in the best interest of the child, including . . . [a]n order of 

permanent guardianship pursuant to 14 V.S.A. § 2664”). 
8

the statutory scheme allows a parent to “file a motion to terminate a guardianship at any time.” Id. 

§ 2632(a). 

¶ 16. Grandparents plainly fail to satisfy the statutory requirements for a consensual 

guardianship, and they do not appear to argue otherwise. Mother was not a “custodial parent” at 

the time her consent was given, even assuming that her consent could somehow survive the 

termination of her parental rights, and grandparents never obtained father’s consent. See id. 

§ 2622(2)(A)(ii) (defining “[c]hild in need of guardianship” in relevant part as “[a] child who the 

parties consent 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” (emphasis added)); 

id. § 2622(3) (defining “[c]ustodial parent” as “a parent who, at the time of the commencement of 

the guardianship proceeding, has the right and responsibility to provide the routine daily care and 

control of the child”); id. § 2626(a) (requiring consent signed by “parents verifying that the parent 

or parents understand the nature of the guardianship and knowingly and voluntarily consent to the 

guardianship.”). Following the termination of their parental rights, moreover, parents have no 

ability to enter into the type of agreement required by 14 V.S.A. § 2626(b) for establishment of a 

consensual guardianship. 

¶ 17. Grandparents similarly cannot satisfy the requirements for establishment of a 

nonconsensual guardianship under 14 V.S.A. § 2627. A “ ‘[n]onconsensual guardianship’ means 

a guardianship with respect to which: (A) a parent is opposed to establishing the guardianship; or 

(B) a parent seeks to terminate a guardianship that the parent previously agreed to establish.” Id. 

§ 2622(4)(A), (B). Grandparents would need to establish by clear and convincing evidence that 

S.O. is “in need of guardianship” as defined in 14 V.S.A. § 2622(2)(B), meaning, as relevant here, 

that she is “[a] child who is: (i) abandoned or abused by [her] parent[s]” or “(ii) without proper 

parental care, subsistence, education, medical, or other care necessary for [her] well-being.” 
9

¶ 18. Grandparents cannot make the necessary showing here. At the time that the 

guardianship petition was transferred back to the probate division for consideration, parents’ 

residual rights in S.O. had been terminated. Parents thus have no ability to either consent to or 

oppose the guardianship, a point grandparents appear to concede. A “nonconsensual 

guardianship” is by definition a guardianship that a parent opposes. 14 V.S.A. § 2622(4)(A). 

Parents’ inability to oppose the guardianship is fatal to a request for a nonconsensual guardianship 

here. A nonconsensual guardianship is only appropriate, moreover, when a proposed guardian can 

make a showing sufficient to overcome parents’ “fundamental liberty interest in raising their 

children.” Id. § 2621(4). Parents no longer possess a fundamental liberty interest in raising their 

children here. This type of guardianship is inapplicable under the circumstances here. 

¶ 19. This conclusion is consistent with a commonsense interpretation of a “[c]hild in 

need of guardianship” defined in § 2622(2)(B). The statute speaks of a child’s current status, using 

the word “is,” which we construe as indicating a child’s status at the time the probate division 

considers the guardianship petition. Where the Legislature intends to apply a different timeframe, 

it has said so explicitly. See id. § 2622(3) (defining “[c]ustodial parent” as “a parent who, at the 

time of the commencement of the guardianship proceeding, has the right and responsibility to 

provide the routine daily care and control of the child.” (emphasis added)). 

¶ 20. In this case, parents’ rights have been terminated and DCF holds those rights. S.O.

is not at this point a child who needs a guardianship because her parent is abusing or neglecting 

her. It would be absurd to conclude otherwise. It would also upset the process created by the 

Legislature, which allows the family division to decide how to best treat a guardianship petition 

filed while there is a pending juvenile proceeding involving the same child. If a child remained 

an abused or neglected child under § 2622(2)(B) notwithstanding the termination of parents’ 

rights, the probate division could issue orders contrary to those issued by the family division, 

interfering with the family division’s ability to engage in permanency planning and undercutting 
10

the process created by the Legislature to “resolve[] the issues regarding the overlapping 

jurisdiction of the probate and family divisions” in cases like this one. In re C.B., 2020 VT 80, 

¶ 16; see also 33 V.S.A. § 5321 (providing that “[u]nless otherwise specified therein, an 

order . . . transferring legal custody or residual parental rights and responsibilities of a child to

[DCF] pursuant to [33 V.S.A. §] 5318(a)(4) or (5) . . . shall be for an indeterminate period and 

shall be subject to periodic review at a permanency hearing” and “[a]t the permanency hearing, 

the Court shall determine the permanency goal for the child and an estimated time for achieving 

that goal”). 

¶ 21. As reflected above, the types of guardianships provided for in 14 V.S.A. §§ 2626 

and 2627 contemplate a transfer of parental rights and responsibilities to a guardian when parents 

are “temporarily unable to care for their children” with the goal of the eventual return of those 

rights and responsibilities to parents. See 14 V.S.A. § 2621(1). This understanding is reflected in 

our discussion in In re C.B., 2020 VT 80, ¶¶ 23-24 of the various ways in which minor custodial 

guardianships might work in connection with a pending juvenile case. We explained there that a 

minor guardianship, if established prior to a CHINS determination, could moot out a CHINS case, 

or a pending involuntary guardianship petition could similarly become moot if parents “were able 

to reunify” with a child before the court issued its final judgment in the CHINS case. Id. We also 

noted that a court might consider a guardianship “as an alternative to a disposition in the context 

of the CHINS proceeding,” or it “might entertain a proposal for a permanent guardianship pursuant 

to 14 V.S.A. §§ 2660-2667” “at disposition.” Id. 

¶ 22. None of those scenarios are possible here. The court terminated parents’ rights and 

transferred those rights to DCF without limitation as to adoption. The family court declined to 

consolidate the guardianship petition with the juvenile case, concluding that it was not in S.O.’s 

best interests to do so. We are thus left with the scenario we recognized in both C.B. and A.M.: 

that under circumstances such as these, there is nothing left for the probate division to address. 
11

See In re C.B., 2020 VT 80, ¶¶ 22 n.4, 25 (recognizing that “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 a child,” family division 

“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” 

and acknowledging that “[t]he outcome of the CHINS proceeding will obviously affect what, if 

anything, is left to transfer back to the probate division.”); In re A.M., 2020 VT 95, ¶ 20, __ Vt. 

__, 246 A.3d 419 (affirming trial court’s decision to address TPR petition before entertaining 

voluntary guardianship petitions where family division informed parties that “if parents’ rights 

[were] terminated, a transfer of the guardianship cases back to the probate division w[ould] not be 

needed, as the parties will no longer have any right to agree or oppose any guardianship” (quotation 

omitted)).

¶ 23. Grandparents offer no persuasive argument to the contrary. As reflected above, we 

agree with grandparents that a guardianship may be appropriate for a child who has been taken 

into DCF custody and/or been adjudicated as a child in need of care or supervision in the family 

division.

3

 See In re C.B., 2020 VT 80, ¶¶ 23-25 (describing various scenarios in which consensual 

or nonconsensual guardianship might be appropriate in connection with pending juvenile case). It 

does not follow from this proposition, however, that a custodial guardianship remains appropriate 

once there has been a final disposition order in the family division terminating parents’ rights and 

transferring those rights to DCF without limitation as to adoption. We reject grandparents’ 

3

 We do not read the probate division’s decision to hold, as grandparents suggest, that a 

nonconsensual guardianship will never be appropriate for a child who has been adjudicated 

CHINS. While not particularly clear, its reference to a “custodial parent” appears to relate to 

parents’ request for a consensual guardianship. See 14 V.S.A. § 2622(3) (defining “[c]ustodial 

parent”); id. § 2622(2)(A)(ii) (in context of consensual guardianship, “child in need of 

guardianship” means “[a] child who the parties consent 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”). In any event, our review here is de novo and we reject that proposition. 
12

assertion that the transfer of all parental rights to DCF without limitation as to adoption “has no 

impact” on whether a child is in need of guardianship. As reflected above, we have expressly 

recognized the opposite to be true. See id. ¶¶ 22 n.4, 25; In re A.M., 2020 VT 95, ¶¶ 20-22 

(upholding family division’s decision to address TPR petition before considering guardianship 

petitions where family division specifically informed parties termination of parents’ rights would 

render guardianship petitions moot). 

¶ 24. The statutory provisions cited by grandparents offer no insight into the proper 

interpretation of “[n]onconsensual guardianship” in 14 V.S.A. § 2622(4) or “[c]hild in need of 

guardianship” under id. § 2622(2)(B)(i) or (ii). We do not see how the fact that children in DCF 

custody have a right to a hearing before being placed out of state under 33 V.S.A. § 5926 supports

the establishment of a nonconsensual guardianship here, or how the family division’s express 

authority to create a permanent guardianship at disposition under 33 V.S.A. § 5318(a)(6) 

demonstrates that minor custodial guardianships remain viable under a different article of Title 14 

following the termination of parents’ rights. Similarly, we cannot see how the fact that DCF, on 

behalf of a child, or a child who is at least 14 years old, may move for reinstatement of parental 

rights if certain criteria are satisfied, see 33 V.S.A. § 5125(a), has any bearing on our conclusion 

here. None of these provisions show that a consensual or nonconsensual custodial guardianship 

under 14 V.S.A. §§ 2626 or 2627 remains available in this case or as a general matter once parents’ 

rights have been terminated and all rights transferred to DCF without limitation as to adoption. 

¶ 25. We are equally unpersuaded by grandparents’ assertion that, in the event S.O. is 

not adopted, there may be a process available in the probate division by which they might be able 

to eventually petition to adopt S.O. No adoption petition is before us. Grandparents speculate 

that, if an adoption petition were submitted and then denied, a court might appoint them as the 

child’s custodian or guardian, and if that were to occur, they might then become eligible to petition 

to adopt the child themselves after six months of acting as the child’s custodian. They question 
13

whether the probate division will be able to accurately assess whether a future adoption is in S.O.’s 

best interests if it does not consider the merits of their guardianship petition now. These arguments

rest on conjecture and relate to issues that are not before us. Because grandparents have no legal 

right to a consensual or nonconsensual guardianship after the family division has terminated the 

parents’ rights and assigned custody to DCF without limitations as to adoption, their guardianship 

petition was properly dismissed. 

¶ 26. Grandparents next argue that, when the petition was transferred back to the probate 

division, the probate division was required to hold an evidentiary hearing on the merits of their 

petition. They cite Mathews v. Eldridge, 424 U.S. 319, 333 (1976), in support of their assertion. 

According to grandparents, when the family division transferred the guardianship petition back to 

the probate division, DCF “took action contrary to its own policies to ensure that the grandparents 

were deprived of any hearing on their petition, on account of its own preference to place the child 

for adoption elsewhere.” They contend that as a result, they “were deprived of their vital interest 

in ensuring the safety and welfare of [S.O.] without due process of law.” They also appear to 

suggest that DCF, as a matter of policy, was required to place S.O. with them, as relatives, rather

than with a “new, State selected famil[y]” and that DCF failed (in unspecified ways) to follow 

Family Services Division Policy 85, which concerns minor guardianships. 

¶ 27. We reject these arguments. DCF was plainly entitled to move to dismiss the 

guardianship petition, and the court did not err in granting the motion to dismiss without holding 

a hearing. 

¶ 28. The facts relevant to the motion to dismiss were undisputed; the only questions for 

the probate division were questions of law. Grandparents had notice of the motion and an 

opportunity to respond to it. See Mathews, 424 U.S. at 333 (“The fundamental requirement of due 

process is the opportunity to be heard at a meaningful time and in a meaningful manner.” 

(quotation omitted)). There was no need for an evidentiary hearing on the merits of the petition 
14

because, as set forth above, there was no relief that the probate division could grant to grandparents

as a matter of law. Grandparents are not entitled to circumvent the requirements of the statute. 

¶ 29. Nothing in Mathews, 424 U.S. at 334-35, compels a contrary conclusion. The 

Mathews Court explained that:

[T]he specific dictates of due process generally requires 

consideration of three distinct factors: First, the private interest that 

will be affected by the official action; second, the risk of an 

erroneous deprivation of such interest through the procedures used, 

and the probable value, if any, of additional or substitute procedural 

safeguards; and finally, the Government’s interest, including the 

function involved and the fiscal and administrative burdens that the 

additional or substitute procedural requirement would entail.

Id. at 335. 

¶ 30. We agree with DCF that, to the extent grandparents have an interest at stake here, 

it is the opportunity to establish a minor guardianship if they can satisfy the statute’s requirements. 

This interest was protected through the procedures used: grandparents were provided notice and 

the opportunity to respond to the legal issues that formed the basis of the motion to dismiss. No 

hearing was required regardless of what level burden it would impose. There was no basis to hold 

an evidentiary hearing because the relief for which the evidence would be gathered—the 

establishment of a nonconsensual guardianship—could not be granted as a matter of law. We 

reject grandparents’ suggestion that DCF failed to “follow its own policies in this case[,]” although 

it is not readily apparent how that argument relates to the factors cited above.4 

4

 We note that, assuming Family Services Division Policy 85 applies here given that 

parents’ rights have already been terminated, that policy specifically recognizes that a CHINS 

petition, rather than a custodial guardianship, is the recommended approach “[i]f court intervention 

is needed because the parent or caretaker is unable to safely resume care of the child(ren) within 

one month[.]” Dep’t for Children & Families, Family Services Division Policy 85, at *2 (eff. July 

1, 2013), https://dcf.vermont.gov/sites/dcf/files/FSD/Policies/85.pdf [https://perma.cc/HN3ZGMCZ]. The policy further provides that “[t]he Family Division and the CHINS process are the 

appropriate response to manage the on-going safety, permanency and well-being issues for 

children” and “[t]he CHINS process helps hold all parties, including the division, accountable and 

maintains a focus on permanency for the child.” DCF acted consistently with that policy here. 
15

¶ 31. While grandparents disagree with the outcome in this case, the process here 

unfolded consistently with the statutory scheme devised by the Legislature to promote a child’s 

best interests, and grandparents were afforded the process they were due. Given our conclusions 

above, we do not reach grandparents’ final argument concerning the evidence that they would have 

presented had there been a merits hearing. No such hearing was required, and the petition was 

properly dismissed.

Affirmed.

FOR THE COURT:

Associate Justice