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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-047

                                          MAY TERM, 2013

 In re T.P., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Orleans Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 19-4-09 Osjv

                                                            Trial Judge: M. Kathleen Manley

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

        Father appeals termination of his parental rights to his daughter T.P., born in October
2007. On appeal, father argues that the court’s order is erroneous because it “dooms” T.P. to
long-term foster care without a compelling reason. We affirm.

       T.P. first came into the custody of the Department for Children and Families (DCF) in
October 2008 due to medical neglect. She was placed back in her parents’ care in January 2009
under a conditional custody order. While there, a petition to have T.P. adjudicated a child in
need of care or supervision (CHINS) was filed based on illicit drug dealing from the home, and
marijuana and a large dagger left within reach of the child. T.P. was transferred to DCF custody
under an emergency care order and placed in a foster home. The parents stipulated that T.P. was
CHINS because she was without proper parental care. In May 2009, T.P. was placed with her
paternal grandparents under a conditional custody order.

        In November 2010, T.P.’s attorney and guardian ad litem (GAL) filed a termination
petition. In March 2011, all parties agreed that a permanent guardianship would be set up and an
order issued in April 2011 vesting permanent guardianship with the paternal grandparents. The
order found by clear and convincing evidence that neither parent was capable of providing
adequate care for the child and that returning the child to the parents was not reasonably likely.
The guardianship contained conditions relating to the child’s health and contact with the parents.
Throughout the time the child was with her grandparents, the foster mother remained connected,
by providing transportation for T.P., assisting with getting T.P. to medical appointments, and
arranging for T.P. to attend preschool. The foster parents also provided respite care for T.P.
while she was with her grandparents. In February 2012, DCF filed a petition alleging that the
child was CHINS for lack of proper parental care because the grandparents had failed to comply
with the conditions of the guardianship order. Custody reverted back to DCF, and DCF placed
T.P. back with her foster parents in March 2012, where she has remained.

       In April 2012, the permanent guardianship with grandparents was terminated. The court
dismissed the February 2012 CHINS petition, and reinstated the CHINS docket from 2009. In
June 2012, DCF filed a petition to terminate the parents’ residual rights. The court held a
hearing over three days. On the first day of hearing, mother voluntarily relinquished her rights.
        In December 2012, the court issued a written order terminating father’s rights. The court
found that the revocation of the guardianship was a change of circumstances. As to T.P.’s best
interests, the court found that T.P. has made “amazing progress” since moving into the foster
home in March 2012 with improved socialization, health, and behavior.            The court found
that father is not able to provide for T.P. He has unresolved substance abuse issues, pending
criminal charges, and is not able to provide her with a stable home. He has not attended T.P.’s
medical appointments, does not know what services she requires, and has not made an effort
 to find out how T.P. is doing. The court concluded that father will not be able to assume
parenting within a reasonable period of time, and terminated father’s rights.
Father appeals.

        When the termination of parental rights is sought, the trial court must conduct a two-step
analysis. In re B.W., 162 Vt. 287, 291 (1994). The court must first find that there has been a
substantial change in material circumstances; second, the court must find that termination of
parental rights is in the child’s best interests. Id. In assessing the child’s best interests, the court
is guided by the statutory criteria. 33 V.S.A. § 5114. The most important factor is whether the
parent will be able to resume parenting duties within a reasonable period of time. In re J.B., 167
Vt. 637, 639 (1998) (mem.). On appeal, we will uphold the family court’s conclusions if
supported by the findings and affirm the individual findings unless clearly erroneous. In re A.F.,
160 Vt. 175, 178 (1993).

       On appeal, father does not challenge the court’s findings or its conclusions that there was
a change of circumstances and termination is in T.P.’s best interests. Instead, father argues that
the order is invalid because it “dooms” T.P. to long-term foster care without providing a
compelling reason. Father contends that in this case there was no evidence presented at the
termination hearing to indicate that T.P.’s foster family intends to adopt her post-termination.
Father extrapolates that T.P. will therefore remain in long-term foster care, an option this Court
has described as “the least favorable placement” and that must be supported by a compelling
reason. In re L.S., 172 Vt. 549, 550 (2001) (mem.); see 33 V.S.A. § 5321(a) (listing possible
permanency goals).

        Father’s argument confuses the permanency plan requirements with the factors to
consider at termination. The order on appeal concerned DCF’s petition to terminate father’s
parental rights. Once a change of circumstances is found, termination revolves around the
statutory best-interests factors. There is nothing in those factors that requires consideration of
the particular permanency plan contemplated for the child, or the likelihood of adoption. See In
re S.B., 174 Vt. 427, 430 (2002) (mem.) (“[W]e have repeatedly stated ‘that a valid termination
of parental rights does not depend on the availability of permanent foster care or adoption.’ ”
(quoting In re D.M., 162 Vt. 33, 40 (1994)). While we recognize that a permanent, stable
placement is in a child’s best interests, when considering the best interests of the child, the
family court is not required to find that adoption will follow termination. See In re E.B., 158 Vt.
8, 15 (1992).

        Father also cites the 2011 permanent guardianship order as evidence that T.P. will not be
adopted because a permanent guardianship depends on a finding that adoption is not likely
within a reasonable period of time. See 14 V.S.A. § 2664(a)(2) (requiring family court to find
prior to ordering a permanent guardianship that “Neither returning the child to the parents nor
adoption of the child is likely within a reasonable period of time”). The circumstances at the
time the permanent guardianship was imposed did not automatically extend to the time of the
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termination hearing. The guardianship was revoked and the trial court here found this was a
change in circumstances. Father emphasizes that the trial court did not specifically find that the
circumstance of whether T.P. would be adopted had changed, but, as explained, this was not
relevant at termination.

        The critical question for the trial court was whether termination of father’s rights was in
T.P.’s best interests. Guided by the statutory best-interest factors, the court examined T.P.’s
present situation in evaluating her best interests, including T.P.’s relationship to her foster
parents, and T.P.’s adjustment to her foster home. See 33 V.S.A. § 5114(a)(1), (2). The court
found that T.P.’s foster mother has played an integral role in T.P.’s life since 2009, and continues
to engage T.P. in appropriate activities for her growth and well being. Since moving in with her
foster family, T.P. has made significant medical, behavioral and social improvements. Whether
the foster family intends to adopt T.P. is not clear from the record, but this was not a factor for
the court to consider at termination. The family court duly weighed all of the relevant factors
and determined by clear and convincing evidence that father could not assume parental
responsibilities within a reasonable time, and that the balance of factors compelled a termination
of parental rights. There are no grounds to disturb this decision.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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