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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-245

                                      DECEMBER TERM, 2016

 In re C.R., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Addison Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 11-1-15 Anjv

                                                            Trial Judge: Samuel Hoar, Jr.

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

       Father appeals the superior court’s order terminating his parental rights with respect to his
son, C.R. We affirm.

        C.R. was born in November 2008 to parents who had a relationship fraught with domestic
violence. When C.R. was approximately one and one-half years old, mother took the child to New
York, where she obtained a parentage order that made her C.R.’s primary caregiver. She stayed
in New York for approximately three-and-one-half years before returning to Vermont in 2014.
The parties shared physical custody until July of that year when mother left C.R. with father. In
October 2014, mother took the child to live with his maternal grandmother, where he has remained
ever since.

        On January 29, 2015, the Department for Children and Families (DCF) filed a petition to
have C.R. adjudicated a child in need of care or supervision (CHINS) based on mother having left
the child with a person—his grandmother—who had no legal authority to care for him. The same
day that the petition was filed, the superior court issued an emergency order transferring custody
of C.R. to DCF, which maintained the placement with the maternal grandmother. In April 2015,
DCF filed an initial case plan with concurrent goals of reunification with either parent or adoption.
The case plan recommended, among others things, that father undergo a substance abuse
assessment and engage in domestic violence counseling. On June 23, 2015, after a number of
hearings and status conferences in which mother failed to appear, the superior court held a merits
hearing and adjudicated C.R. CHINS based on mother’s stipulation.

        One month after the CHINS adjudication, DCF filed a disposition case plan making the
same service recommendations as the initial case plan but changing the goal to solely adoption.
The disposition hearing was commenced on July 28, 2015, but was continued to allow the parties
to prepare for a contested termination-of-parental-rights (TPR) hearing following DCF’s filing of
petitions seeking the termination of mother’s and father’s parental rights. As a consequence, the
court did not adopt DCF’s disposition case plan as a disposition order at any time prior to the TPR
hearing. The TPR hearing was held over two days on March 29 and May 9, 2016. At the outset
of the first day of the hearing, mother voluntarily relinquished her parental rights contingent upon
father’s rights being terminated. Following the completion of the hearing, the superior court
terminated father’s parental rights, concluding that the best interests of C.R., pursuant to the
criteria set forth in 33 V.S.A. § 5114(a), warranted terminating father’s parental rights. The court
found that father had failed to comply with the recommended services in the case plan, had not
had any relationship with C.R. since May 2015, and would not be able to resume parental duties
within a reasonable period of time from the perspective of the high-needs child.

       On appeal, father argues that: (1) the delay in the superior court reviewing the case plan
recommendations cannot be attributable to him, and thus his failure to abide by those
recommendations may not be a ground for terminating his parental rights; and (2) the evidence
does not support the court’s finding that DCF had legitimate concerns justifying its case plan
recommendations. According to father, because the case plan recommendations were not
considered by the court before the disposition/termination hearing, he had no opportunity to
challenge those recommendations, and therefore cannot be faulted for not having followed them.
He contends that if the court had timely addressed the recommendations, he may well have come
to understand what he needed to do for reunification. He further argues that there was conflicting
evidence as to whether he had engaged in domestic violence and that no evidence indicated that
he had a continuing drug problem or that any such problem impacted his parenting.

        We find no merit to these arguments. With respect to father’s second argument, there was
ample evidence to support the superior court’s finding that instead of working with DCF to address
“legitimate concerns” expressed in the case plan, father responded by denying his need to comply
with recommendations and disengaging with DCF. Although father minimizes his history of drug
abuse and its impact on him and his family, he does not challenge the superior court’s finding that
he and mother first met through their mutual drug use and that they were both heroin users. Those
facts alone support DCF’s recommendation that father be required to participate in a substance
abuse assessment. Notably, the case plan did not call for treatment, but only for father to
participate in an assessment.

        Moreover, while father and mother presented conflicting testimony regarding father’s
alleged domestic abuse, father does not challenge the court’s findings, which were supported by
mother’s testimony, that father physically and emotionally abused mother throughout their
relationship and that much of father’s violent behavior occurred in the presence of C.R. See In re
M.L., 2010 VT 5, ¶ 29, 187 Vt. 291 (“[I]t is the exclusive role of the family court to weigh the
evidence and assess the credibility of the witnesses.”). Father faults the court for asking C.R.’s
therapist, who testified that C.R. told her he saw father being physically abusive, whether she
considered C.R. to be a reliable reporter. He describes this exchange as an abdication of the court’s
responsibility to judge credibility, thus tainting the validity of its domestic violence finding. But
even if the court were to discount the therapist’s testimony, there was ample evidence of father’s
domestic abuse to justify requiring father to engage in domestic abuse counseling.

         Regarding father’s first argument, the fact that the disposition/termination hearing revealed
evidence of father’s drug use and domestic violence indicates that father was not prejudiced to the
extent he had no opportunity to challenge the recommendations in the case plan because of delays
not attributable to him. This is not a case in which the court found at disposition that DCF had not
proven the facts on which it based its recommended services. To the contrary, the superior court
found “incredible” father’s denial of domestic violence and drug use and further found DCF’s
service recommendations to be based on “legitimate concerns.”

       Moreover, it is not father’s failure to follow DCF’s recommendations per se that support
the court’s termination decision; rather, it was father’s actual, substantial parenting deficits,

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coupled with his persistent denial of those problems and failure to take meaningful steps to address
them over a long period of time, that was most important. The trial court referenced father’s refusal
to engage in services designed to equip him to resume parental duties, as well as “his persistent
intransigence and narcissistic denial that he needs to do anything different to become the parent
C.R. needs” in its best interests analysis. DCF’s recommended case plan offered father a potential
roadmap to mitigating his deficit parenting skills, but it is that deficit and the father’s failure to
address it despite the opportunity to do so, rather than the mere fact that he did not do what DCF
recommended, that is critical here.

        In any event, at a two-day hearing on father’s motion for renewed visitation held in
September and October of 2015, father presented detailed testimony concerning his relationship
with mother, the reasons for many police visits to their home, his role in C.R.’s life during the six
years leading up to the transfer of custody to DCF, and his relationship with C.R. He explained
why he did not follow the recommendation of C.R.’s therapist that he attend a batterer’s group
before visits with C.R. could resume. Although the visitation hearing was not a full disposition
hearing, father planned to call more witnesses at the hearing, but ultimately settled the matter by
agreeing to certain conditions before the resumption of visits—that he meet at least twice with
C.R.’s therapist to gain a better understanding of C.R.’s issues and the role his own behaviors had
played in fostering or exacerbating C.R.’s anxieties, and that he engage in personal counseling to
deal with his own issues. Despite this agreement, which resulted in a court order, father ultimately
refused to comply with the conditions and, as a result, visits were not resumed.

       In short, we discern no basis to reverse the superior court’s termination order based on any
delays in holding proceedings in the case. See In re D.D., 2013 VT 79, ¶ 24, 194 Vt. 508
(“Although disposition should occur within thirty-five days after a CHINS adjudication, 33 V.S.A.
§ 5317(a), this timeline is not mandatory.”).

       Affirmed.



                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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