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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-113

                                        AUGUST TERM, 2015

 In re S.P., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 39-2-13 Cnjv

                                                            Trial Judge: Michael S. Kupersmith

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

        Mother appeals from a family court order terminating her parental rights to the minor S.P.
She contends: (1) the court failed to provide a clear, adequate explanation of its decision; and (2)
the evidence does not support several of the court’s findings. We affirm.

        The facts may be summarized as follows. Two days after S.P. was born, in early
February 2013, the State filed a petition alleging S.P. was a child in need of care or supervision
(CHINS) and an emergency care order based on mother’s extensive history of substance abuse
and Department for Children and Families (DCF) involvement, which had resulted in the
termination of her parental rights to five older children, one with S.P.’s father. S.P. was returned
to mother under a conditional care order, requiring that she attend all prescribed counseling and
parent education programs, maintain safe and stable housing, and remain drug and alcohol free.
In late February 2013, the parents stipulated to an adjudication of CHINS based, in part, on
mother’s lengthy history of mental-health, parenting, and substance-abuse issues.

        Several months later, in May 2013, the court ordered that custody of S.P. be transferred
to DCF based on the parents’ failure to comply with the conditions. The initial case plan, filed
the same month, identified concurrent goals of reunification and adoption, and set forth a plan of
services calling for mother to undergo a mental-health trauma assessment and follow
recommendations for follow-up care, complete parent education, locate stable housing, and
continue substance-abuse counseling. In September 2013, mother and S.P. were accepted into
the Lund Home, and the court adopted a modified case plan maintaining the same goals and plan
of services with a three-month time-frame to achieve reunification. Mother was discharged from
Lund in April 2014; the discharge summary concluded that, throughout her stay, mother had
exhibited limited insight into her need for mental-health and substance-abuse treatment, and was
not motivated to engage in services for the benefit of herself and S.P. Despite an extensive
trauma history and possible cognitive impairments, the report concluded that mother’s
willingness to engage in treatment was limited, and recommended intensive outpatient treatment
and a comprehensive cognitive assessment.
        After mother’s discharge from Lund, she lived with S.P. and father at the home of an
acquaintance under a safety plan with DCF. A report in May 2014 that S.P. and the parents were
living in a car, that the parents had been arguing, and that mother had threatened S.P. led to a
new safety plan focused on mother’s maintaining safe housing, advising DCF of any planned
move, and ensuring that mother remain substance free and in compliance with the case plan. In
July 2014, mother moved without informing DCF, which led to a third safety plan.

        A report in August 2014 that S.P. was having unsupervised contact with father, contrary
to a provision in the safety plan, led to the removal of S.P. from mother’s care, and shortly
thereafter the State filed a petition to terminate parental rights. That same month, mother gave
birth to a daughter, K.P., who was immediately taken into DCF custody. Both S.P. and K.P.
were placed in the same foster home, where they have since remained.

        The court held an evidentiary hearing over the course of three days in January 2015, and
issued a written decision, granting the petition, in February 2015. The court took judicial notice
of and adopted in this case the findings in the various final court decisions relating to mother’s
five prior termination-of-parental-rights matters. The most recent of these decisions was a
termination-of-parental-rights decision from 2012 involving a different child. In that decision,
the court found that mother had a history of depression and anger management difficulties, and
had been the victim of domestic violence, as well as suffering past trauma from her own
childhood. The court connected mother’s mental-health issues to her inability to provide a safe
and stable environment for any of her children, and found that mother had exhibited a stubborn
resistance to mental-health counseling.

        Specifically in connection with this case, the court found, in summary, that, although
mother had made some progress, it was not sufficient to resume parental responsibilities within a
reasonable time. She had not completed the Lund residential program or followed through on
the recommendations at the time of discharge, also contained in the case plan, that mother
engage in intensive mental-health counseling. The court noted that such compliance was “an
essential step towards reunification” as evidenced by mother’s mental-health history and the
record of her loss of parental rights to five other children. In addition, the court found that,
although fairly consistent in maintaining child visitation, mother’s struggles with substance-
abuse and that mental-health issues had impeded her ability to play a constructive role in S.P.’s
welfare. The court also found that S.P. had bonded with his foster parents, and was thriving in
the stable home environment they provided. Accordingly, the court concluded that termination
of parental rights was in the child’s best interests. This appeal by mother followed.*

        Mother contends the trial court failed to provide a clear explanation of its decision, and in
particular failed to specify the facts and findings underlying its conclusion that mother could not
resume parental responsibilities within a reasonable time. Our review on appeal is limited.
“When findings are attacked on appeal, our role is limited to determining whether they are
supported by credible evidence.” In re A.F., 160 Vt. 175, 178 (1993). We will not disturb the
trial court’s findings unless clearly erroneous, nor its conclusions if reasonably supported by the
findings. In re G.S., 153 Vt. 651, 652 (1990) (mem.). We leave it to the sound discretion of the


       *
           Father has not appealed from the order terminating his parental rights.
                                                  2
trial court to determine the credibility of the witnesses and weigh the evidence. In re A.F., 160
Vt. at 178.

         Although the trial court here did not expressly reference or repeat its earlier findings in
support of its conclusions—a better practice in juvenile proceedings—they fully supported the
conclusion that mother could not resume parental rights and responsibilities within a reasonable
time. These included the findings adopted from prior, final decisions that mother’s history of
trauma and mental-health issues prevented her from providing a safe and stable environment for
her prior children, as well as the court’s current findings—amply supported by the evidence—
that mother was discharged from Lund for failure to engage in the treatment program, and that
she had failed to follow through on Lund’s recommendation, as well as that of the case plan, that
she engage in intensive trauma-focused counseling, a requirement the court found to be essential
to reunification. The finding that mother has mental-health challenges that interfere with her
ability to parent, and that she continues to resist such treatment, and that she failed to engage in
the Lund treatment program are sufficient to support the court’s conclusion that mother could not
resume parental responsibilities within a reasonable time.

        Mother further contends that her failure to engage in therapy stemmed from factors
beyond her control, and that there was no evidence the lack of counseling prevented her from
adequately parenting the child. The record does not support mother’s claim that she failed to
engage in counseling because a therapist was unavailable. The record does contain substantial
evidence of her need for counseling—including a history of mental-health issues and ongoing
problems relating to impulsivity, anger control, and the ability to stay focused and on task—
which reasonably supported a finding that her failure to engage in counseling impeded her ability
to resume parental responsibilities within a reasonable time. Mother notes in this regard that the
evidence showed progress in her ability to care for the child, but it was progress in a highly
structured and supervised setting such as Lund, and did not support a conclusion that she could
resume independently caring for the child.

        Mother further questions the reliability of her Lund counselor’s testimony that staff and
residents had reported that she was medicating S.P. with Benadryl so that he would go to sleep
earlier and sleep longer. The court merely noted the concern of Lund staff in this regard; it did
not rely on the evidence to any extent in concluding that mother could not resume parenting the
child. Accordingly, the issue is immaterial. See In re R.W., 2011 VT 124, ¶ 17, 191 Vt. 108
(noting that we will reverse termination-of-parental-rights judgment only where error has
affected party’s substantial rights). A similar conclusion applies to mother’s claim that the court
erroneously relied on several findings by DCF that mother had violated provisions of the safety
plans in place while S.P. was in her custody; the violations involved a report of a fight with
father and a threat to S.P., a move without advising DCF, and a report that S.P. was in a car with
father contrary to the safety plan’s requirement that all such contact be supervised. Again, apart
from noting the violations in outlining the case history, the court did not rely on them in support
of its conclusion that mother could not resume parental responsibilities within a reasonable time.
See id.

       Finally, mother contends the evidence did not support the court’s finding that her ongoing
personal struggles had impeded her ability to play a constructive role in the child’s life. On the
contrary, the record evidence of mother’s inability—from S.P.’s birth forward—to retain custody

                                                 3
and safely and independently parent the child, resulting in DCF custody and the child’s
placement in foster care, amply supports the court’s finding that she had not played a
constructive role in the child’s life. Accordingly, we find no basis to disturb the judgment.

       Affirmed.



                                             BY THE COURT:


                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice

                                             _______________________________________
                                             Beth Robinson, Associate Justice




                                             4
