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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-262

                                       OCTOBER TERM, 2014

 In re T.D. & B.D., Juveniles                          }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 53/54-2-13 Cnjv

                                                            Trial Judge: Alison Sheppard Arms

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

       Father appeals from the trial court’s denial of his request to modify a disposition and
conditional custody order. He argues that the court’s decision is not supported by the record.
We affirm.

       Mother and father are the parents of T.D., born in April 2001, and B.D., born in March
2003.* Mother and father divorced in 2007. The Department for Children and Families (DCF)
opened a case on the family in 2010 based on concerns about hoarding, unsanitary living
conditions, and the children’s behavioral and educational issues. The family case remained open
for two years, and there was progress over that time.

        In February 2013, DCF opened another case due to hoarding and cleanliness issues, and it
filed a petition alleging that the children were in need of care or supervision (CHINS). Mother
had sole custody of the children at that time. She admitted that the children were CHINS
because she lacked stable housing, having lost her apartment due to her inability to keep it in a
sanitary condition. Mother agreed that the unsanitary conditions were unhealthy for the children,
and that the loss of the apartment led to instability for the children, both of which placed the
children at risk of harm. The children were placed in mother’s custody on the condition that they
reside with father. At a post-disposition review hearing in July 2013, mother had still not
obtained housing and the children continued to live with father. In late September 2013, mother
asked that the children be returned to her custody as she had obtained housing. The court
granted her request in October 2013 with the added condition that “DCF should monitor the
mother’s home on a regular basis.”

       In March 2014, father learned that mother was about to be evicted from her apartment,
and he requested a hearing. Following a non-evidentiary hearing, the court declined to alter
custody or parent-child contact given that mother was purportedly working with service
providers to establish alternate housing. Father then filed a motion to modify the disposition

        *
         They are also the parents of H.D., born in April 1998. H.D. is not part of this appeal;
he was subject to a different order. See In re H.D., No. 2014-040, slip op. (Vt. July 24, 2014)
(unpub. mem.), available at https://www.vermontjudiciary.org/LC/unpublishedeo.aspx.
order, alleging that mother had been evicted. Following a June 2014 hearing, the court denied
father’s request.

        The court found as follows. After the children were returned to mother’s custody in late
2013, a DCF social worker made announced visits to mother’s home. The social worker
observed that, in general, the dishes were done. In February 2014, mother received an eviction
notice based on allegations of excessive noise and unsanitary living conditions, including an
allegation that the apartment was “strewn with garbage, food, pet mess, etc. that emits a stench
throughout the building.” The court found that these allegations were not confirmed by any
testimony presented at the hearing. Mother denied that the home was unclean, and DCF had not
received any complaints from the local housing authority. Mother’s landlord did not appear at
the eviction hearing, and mother was not evicted. Nevertheless, mother entered into an alternate
agreement whereby she could maintain her housing voucher and the housing authority would be
allowed to enter her next apartment for a nine month period to conduct inspections.

        Mother moved to a motel and then into a housing shelter. Mother was still looking for
housing at the time of the June 2014 hearing. She could not stay at the housing shelter beyond
September 2014, and her housing voucher was valid until October 2014. While living in the
shelter had been challenging for the children, the DCF social worker believed that the children
should continue to live with mother and maintain consistent visitation with father. DCF had not
received significant reports that would warrant the children’s removal from mother’s care. The
court found that mother had implemented recommendations from her service providers. The
social worker testified that, while there was more work to be done, mother was compliant with
important aspects of the case plan. The social worker believed that mother would be successful
if she could find housing, continue to work with service providers, and if both parents tried to
work together. The social worker believed that the CHINS case should remain open until mother
obtained an apartment and then beyond that point for another three months.

        Father presented evidence to support his contention that the children should be placed in
his custody. He testified that he lives in a large house with his fiancée, three stepchildren, and
H.D. Father believed that the shelter was not a stable home as it was a temporary living
arrangement. He speculated that it was unsafe because he had seen people smoking in the
parking lot. Father testified as to how he would address B.D.’s mental health needs. The court
noted that father had successfully engaged in the intensive-family-based-services program for
thirteen weeks. There was structure in father’s home. When the girls were living with father,
they did not miss school and were not late for school. Father believed that the children should be
in his care because mother’s issues had persisted for four years despite being given “chance after
chance” with DCF’s involvement. He believed that the children were suffering mental and
emotional abuse and characterized their life with mother as a roller coaster that did not serve the
children’s best interests. Both parents agreed that they had different parenting styles and did not
get along well.

       Based on these and numerous other findings, the court concluded that while there had
been a change in circumstances due to mother’s housing instability, continued placement with
mother was in the children’s best interests.

        With respect to the first statutory best-interest factor, the court found that mother had
been the children’s primary caregiver until February 2013 when the children lived with father for
nine months. B.D. was more attached to mother than father, although she had recently become
less resistant to visiting father. B.D. needed extra attention, and mother had supported her

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programming. Mother engaged in activities with both children and exposed them to positive
experiences. The court noted that father was able to effectively manage B.D.’s behavioral issues
while B.D. was living in his home. Father loved the children. Yet beyond father’s ability to
discipline B.D. and generally provide for her care, the court had no other information from which
it could conclude that father played a significant role in B.D.’s life. Similarly, the court found no
information from which it could draw any conclusion regarding the qualitative nature of father’s
relationship with T.D. The court added, however, that father had been able to ensure that the
children attended school regularly.

        As to the second factor, the court concluded that the children were well-adjusted to being
in mother’s care although challenges remained. If mother could obtain stable housing in the near
future, the court found it likely that she would be able to resume her full parenting
responsibilities within a reasonable amount of time. Mother struggled to ensure that the children
went to school. But this fact alone, the court found, did not demonstrate that the children were
not well-adjusted to their school, and there was no other evidence indicating that the children
were incapable of adjusting to their school. Additionally, the court concluded that the children
should not be removed from mother’s care simply because they were living in a temporary
shelter as the children’s needs were otherwise being met and no safety concerns existed.

       Regarding the third and most important statutory factor, the court concluded that mother
was working productively with service providers to address the family’s challenging situation.
Despite setbacks, DCF continued to support the primary case plan goal of reunification with
mother. Mother was working to meet the case plan goals. She had not lost her housing voucher
and was attempting to secure housing. Mother was also attempting to reenter the workforce.
The court concluded that mother might accomplish the case plan goals within a reasonable
period of time. It noted that mother must remain attentive to hoarding and ensure that her living
conditions were sanitary.

        Finally, the court recounted that both parents had participated in B.D.’s programming, but
father had struggled on at least one occasion in a follow-up meeting because B.D. did not want
him at the meeting. The court found that father appropriately withdrew from the meeting, but the
incident demonstrated that his participation in therapeutic family work was stressful. While the
court did not fault father, it found that the event demonstrated a disparity in the role he played in
B.D.’s life as opposed to the role that mother played. Father credibly testified that he was
willing to continue B.D.’s recommended counseling and work with her pediatrician. In
evaluating this factor, the court noted, however, that father had unilaterally decided not to pursue
counseling for H.D., who was not subject to the motion before the court. The court found this
behavior concerning. While father was sincerely working toward a better relationship with B.D.,
that work was ongoing.

         The court stated that it was most concerned by father’s failure to demonstrate that he
could play a constructive and collaborative role in parenting with mother. Father had H.D. in his
custody, and the court found that the strain on father’s time had compromised H.D.’s parent-
child contact with mother. The court credited mother’s testimony that she had limited contact
with H.D. and that father was undermining that contact by refusing to provide H.D. with
transportation to visit her and requiring H.D. to take a bus to see her, and that father discouraged
visitation with mother at the housing shelter. While father’s motion did not concern H.D., the
court found that father’s attitude toward continuing to foster a relationship between mother and
B.D. and T.D. would be similarly restrictive going forward. Based on its analysis, the court


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concluded that the children should remain with mother and continue to have visits with father.
Father appealed from the court’s order.

        Father challenges the court’s assessment of the children’s best interests on appeal. He
argues that the evidence and findings support a conclusion that the first and third statutory best-
interest criteria tip strongly in his favor. He asserts that the court’s conclusion as to the fourth
factor is confusing. Ultimately, father contends that the court’s conclusion that the children
should remain with mother and have visits with him is not supported by the evidence and
findings. He points to mother’s failure to keep and maintain suitable housing and asserts that she
has not been able to meet case plan goals. He maintains that, by contrast, he has always had
suitable housing and he successfully parented the children for the nine months that he had
custody.

        The court may modify a disposition order if there is a change of circumstances which
requires such modification to serve the children’s best interests. 33 V.S.A. § 5113(b). “Absent
an abuse of discretion the findings and disposition order of the [family] court must stand.” In re
C.L., 2014 VT 87, ¶ 11 (mem.) (quotation omitted). It is for the trial court, not this Court, to
determine the credibility of the witnesses and weigh the evidence. See In re A.F., 160 Vt. 175,
178 (1993) (“We leave it to the sound discretion of the family court to determine the credibility
of the witnesses and to weigh the evidence.”).

         We find no grounds to disturb the court’s decision. While father contends that his
evidence supported modification, the court concluded otherwise. It recognized father’s positive
attributes. Nonetheless, it was unable to conclude that father played a significant role in B.D.’s
life or in T.D.’s life. Mother, by contrast, had been the children’s primary caregiver for most of
the children’s lives and had spent a great deal of time with B.D. and engaged in positive
activities with the children. While mother had not yet met the case plan goals, the court found
that she was working productively with service providers to address the family’s challenging
situation and was working to meet the case plan goals. The court concluded that she might
accomplish the case plan goals within a reasonable period of time. In reaching its decision, the
court also expressed its concern that father appeared unable to play a constructive and
collaborative role in parenting with mother. For these and the other reasons set forth above, the
court denied the motion to modify. The court provided a reasonable basis for its decision, and
while father disagrees with the court’s conclusion, he has not shown an abuse of discretion.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Harold E. Eaton, Jr., Associate Justice



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