Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-215

                                      NOVEMBER TERM, 2012

 In re K.B., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Rutland Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 119-8-08 Rdjv

                                                            Trial Judge: Nancy Corsones

                          In the above-entitled cause, the Clerk will enter:

        Mother appeals an order of the superior court, family division, terminating her parental
rights with respect to her son, K.B. We affirm.

        The undisputed findings reveal the following facts. K.B. was born in March 2003. From
birth, he was plagued with significant and chronic medical conditions, including ongoing
respiratory problems and acid reflux, which made it difficult for him to gain weight. At the age
of two, he began to display significant aggression, mostly directed towards other children at his
daycare. By the age of five, his behavior had become so aggressive and violent that he was
admitted to the Brattleboro Retreat at his doctor’s insistence. The retreat staff became concerned
about the prospect of returning K.B. to his mother’s home after observing the child’s extremely
disturbing and sexualized behaviors, and mother’s seeming inability to comprehend the depth
and severity of K.B.’s behavioral issues and the level of care necessary to address those
behaviors. In August 2008, two months after K.B. entered the retreat, the Department For
Children and Families (DCF) filed a petition alleging that he was a child in need of care or
supervision (CHINS) in light of mother’s cognitive limitations and K.B.’s extreme behaviors,
which posed a potential danger to mother’s younger two children.

        K.B. was ordered into state custody on August 19, 2008 and placed in a residential
treatment facility. When he arrived at the facility at age five and one half, he was still not toilet
trained and could not hold a knife or fork, count to ten, say the alphabet, recognize letters, or
hold a pencil. During his thirteen-month stay at the facility, he was given a psycho-educational
evaluation, which resulted in diagnoses of Attention Deficit Hyperactivity Disorder, generalized
Anxiety Disorder, and Adjustment Disorder with Mixed Emotions. He also scored very high on
the Autism spectrum scale and had a limited intelligence quotient of 69.

       The disposition plan called for continued DCF custody until K.B. could return to
mother’s home. The plan contemplated eventually moving K.B. from the residential facility to
foster care before transitioning him to mother’s home. Upon K.B’s discharge from the
residential facility in October 2009, mother was still unable to safely parent K.B., so he was
moved into his current foster home, where he received an extensive network of support to deal
with his ongoing physical and emotional problems. K.B.’s extreme behavioral problems
continued, and on a couple of occasions he was temporarily placed in a residential treatment
program.

       At the eighteen-month review in February 2010, the permanency plan goal changed to a
concurrent plan of reunification with mother or adoption. A June 2010 forensic evaluation of
K.B., his biological family, and his foster family revealed that mother had limited cognitive
functioning and efficiency and that K.B. was in the top one percent of the population in terms of
need for treatment, services, and supervision.

        By the time of the three-year review, DCF had concluded that mother had not acquired
the level of skill to keep K.B. or other children around him safe, given her inability to understand
the seriousness of K.B.’s behavioral problems. On June 7, 2011, DCF filed petitions to terminate
the parental rights of K.B’s mother and father. A four-day termination hearing took place in
February 2012, at which time father voluntarily relinquished his parental rights conditioned upon
mother’s rights being terminated. Following the hearing, the court concluded that there was a
substantial change of circumstances due to stagnation in mother’s ability to parent K.B. and that
the termination of mother’s parental rights was in K.B.’s best interests.

        Mother appeals, arguing that, in terminating her parental rights, the family court
mistakenly sacrificed the critical bond between her and K.B. for the uncertainty of his foster
placement. See In re J.F., 2006 VT 45, ¶ 13, 180 Vt. 583 (mem.) (noting that “in some cases a
loving parental bond will override other factors in determining whether termination of parental
rights is the appropriate remedy”). According to mother, the court failed to appreciate the
importance of maintaining her bond with K.B. and further failed to make a critical finding on a
question central to determining the significance of that bond—specifically, whether K.B. acted
out before and after visits with mother because of separation anxiety associated with the absence
of his primary attachment figure, as mother’s expert suggested, or because he was simply
reverting back to the behavior that had led to his removal from mother’s custody in the first
place.

         In effect, mother asks us to reweigh the evidence on the bond between her and K.B.,
which we will not do. The trial court stated that it was impossible to know for sure why K.B.
acted out before and after visits with mother. The experts provided differing views on the basis
for K.B.’s behavior. The court was not compelled to choose a position and attempt to determine
what triggered K.B.’s actions. The court’s finding accurately reflected the evidence indicating
that it was impossible to know for sure what prompted K.B.’s behavior before and after mother’s
visits. The court frankly acknowledged that the foster mother had sought “to cut mother out of
K.B.’s life” and that it was not entirely convinced DCF had done the right thing in reducing
visits with mother. The court also had concerns over a troubling relationship between K.B. and
his foster brother. While acknowledging mother’s genuine efforts to demonstrate love and
affection for K.B., the court found those efforts were “far outweighed” by mother’s failure over
more than a three-year period to improve her parenting skills “even to the slightest degree.” It
found “there is no reasonable probability that [mother] will be able to resume parental duties
within a reasonable period of time, as measured from the perspective of nine year old K.B.” In
contrast, the court concluded that K.B.’s foster parents had the willingness and ability to address
K.B.’s extraordinary needs for the duration of his childhood. We will not disturb the judgment
of the family court, which applied the correct legal standards and made findings and conclusions
supported by the evidence. See In re M.B., 162 Vt. 229, 238 (1994) (recognizing that public
policy does not dictate maintaining parent-child bond regardless of cost to child).



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       Mother argues that, notwithstanding the foster parents’ professed desire to adopt K.B.,
K.B.’s continued troubled history while in their care raises doubts about whether the placement
will work in the long run. This argument is unavailing insofar as the family court may terminate
parental rights even in cases where no alternative placement has been identified at the time of the
termination hearing, as long as the best-interest criteria support the termination decision. See In
re E.B., 158 Vt. 8, 15 (1992) (noting that termination of parental rights does not depend on
existence of alternative placement).

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Brian L. Burgess, Associate Justice




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