Summary
recognizing that "we can reverse on an unpreserved issue in exceptional cases" where "the error . . . is so obvious, grave, and serious as to warrant reversal"
Summary of this case from In re J.D.Opinion
No. 90-407
September 26, 1991.
Appeal from District Court of Vermont, Unit No. 3, Orleans Circuit.
Appellant seeks our reversal of an order terminating parental rights in his two children. At the time of the termination hearing, criminal charges were pending against appellant for sexual abuse of his cousin. Appellant claims that in proceeding with the juvenile case without granting him immunity with respect to the pending criminal charge, the district court presented him with an unconstitutional "Hobson's Choice." He had either to decline to testify freely in his own behalf against termination of his parental rights, appellant argues, or risk self-incrimination with respect to the criminal case.
We find, first, that the issue now raised by appellant was not adequately preserved for appeal. Issues, including those with constitutional dimensions, are waived by parties unless raised at the earliest opportunity. Hall v. Department of Social Welfare, 153 Vt. 479, 487, 572 A.2d 1342, 1347 (1990). In order to effectively raise objection to action by a court, a party must present the issue with specificity and clarity in a manner which gives the court a fair opportunity to rule on it. See State v. Ringler, 153 Vt. 375, 378, 571 A.2d 668, 670 (1989). In the present case, appellant failed to present the district court with specific grounds for his objection to proceeding without immunity. He indicated to the court the criminal charges lodged against him, and the fact that allegations of sexual abuse of his own children were an element of the State's case for termination of his parental rights. However, he did not show how the charge of abuse of his cousin was related to the termination proceeding. As a result, he failed to show how he might incriminate himself in the criminal matter by testifying at the parental rights hearing.
Appellant argues that if the issue is unpreserved, this Court should nevertheless address it because the district court's actions constituted plain error. We recognize that we can reverse on even an unpreserved issue in exceptional cases. See Varnum v. Varnum, 155 Vt. 376, 382, 586 A.2d 1107, 1110-11 (1990). This case, however, is not one in which the error, if any, is so obvious, grave, and serious as to warrant reversal. See In re G.S., 153 Vt. 651, 651-52, 572 A.2d 1350, 1351 (1990). The applicable standard for termination of parental rights is grounded in the "best interests" of the children as defined according to four statutory factors. See 33 V.S.A. § 5540. We will uphold the findings of a trial court in support of a termination of parental rights unless they are clearly erroneous. In re J.R., 153 Vt. 85, 94, 570 A.2d 154, 158 (1989). The record reveals that while the juvenile court considered the allegations of appellant's sexual abuse of his children, the findings reflect numerous grounds for termination of his parental rights. Appellant has not shown any real likelihood that the outcome would have been different had he been able to testify with immunity or after the criminal charges pending against him were resolved.
Affirmed.